Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows: (a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts: (i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control; (ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365; (iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company; (iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus. (b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately. (c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans. (d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date. (e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance. (f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date. (g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary. (h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1. 4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Change in Control Agreement (Cornerstone Realty Income Trust Inc), Change in Control Agreement (Cornerstone Realty Income Trust Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other (a) Good Reason; Other than for Cause Cause, Death or by the Executive for Good ReasonDisability. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, Cause or if Disability or the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) the Executive’s Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
; (ii2) an amount equal to the product of (ix) the annual target bonus of the Executive for the calendar year immediately preceding of termination under the calendar year in which Company’s Annual Short-Term Bonus Plan (the Change in Control occurs multiplied by “Target Bonus”) and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365; and (3) any accrued vacation pay 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”);
(iii) all amounts previously deferred by B. the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three the product of (31) times [two] [three]1 and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Annual Target Bonus; and
C. the actuarial equivalent of the amounts by which the Executive’s total vested benefits under The El Paso Electric Company Retirement Plan (or any successor plan put into effect prior to a Change in Control), computed as if Executive had [two] [three] 1 additional years of benefit accrual service, exceed the Executive’s actual pension benefits. For this computation, the Executive’s final average salary shall be deemed to be the Executive’s annual base compensation in effect immediately prior to the time a Notice of Termination is given and the benefit and accrual formulas and actuarial assumptions shall be no less favorable than those in effect at such time; “base compensation” shall include any amounts deducted by the Company for Executive’s account under any agreement with the Company or Section 125 and 401(k) of the Internal Revenue Code of 1986, as amended (the “Code”).
(bii) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following two years after the Executive’s termination Date of employmentTermination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall arrange to provide continue the Executive and his family welfare benefits (includingmedical, without limitation, medicallong-term disability, dental, health, disability, individual life accidental death and group dismemberment and life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect benefits to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for dependents at least equal to those which would have been provided to them in accordance with the 12 months following plans, programs, practices and policies in effect under Section 2(b)(v) of this Agreement (the “Continuing Benefit Plans”) as if the Executive’s Termination Date.
employment had not been terminated (e) If either by permitting the Executive elects to convert any group term life insurance to an individual policy, and/or the Company shall pay all premiums for 12 months and the Executive shall cease Executive’s dependents to participate in the CompanyContinuing Benefit Plans, paying Executive’s group term life insurance.
(f) The Company shallpremiums for COBRA coverage under applicable plans, at its sole expense, as incurred, pay on behalf of by providing the Executive up to $25,000 in fees and costs charged and/or the Executive’s dependents with equivalent benefits outside the Continuing Benefit Plans or by providing Executive a nationally recognized outplacement firm selected by cash payment sufficient for the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Controlpurchase equivalent benefits, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to as the Company contained in this Agreement referring may elect, so long as the net after-tax benefit to benefits to which them is the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company same as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disabilityhad remained an employee of the Company participating in the Continuing Benefit Plans); provided, this Agreement shall terminate without further obligation by the Companyhowever, other than the obligation to pay to that if the Executive in cash the Executive’s unpaid salary through the Termination Datebecomes reemployed with another employer and is eligible to receive medical, plus any accrued paid time offlong-term disability, in each case to the extent not previously paid.dental, accidental death and dismemberment or life insurance benefits under another employer-provided plan, the
Appears in 2 contracts
Samples: Change of Control Agreement (El Paso Electric Co /Tx/), Change of Control Agreement (El Paso Electric Co /Tx/)
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other than for Without Cause or by the Executive Employee for Good Reason. If the Company terminates the employment of the Employee without Cause (as defined in Section 4(b) above) or if the Employee terminates her employment for Good Reason (as defined below):
(i) the Company shall pay the Employee the portion of his base salary in termination as he may be entitled to receive for services rendered prior to the date of such termination;
(ii) for a period of three (3) months following the date on which the Employee’s employment with the Company terminates, the Company shall continue to pay the Employee her base salary in effect at the time of her termination of employment and shall continue to provide the Employee with all benefits specified in this Agreement, with no adverse tax consequences to the Employee, as if she had remained employed by the Company pursuant to this Agreement during the entire such three (3) month period; and For purposes of this Agreement, the Employee shall be deemed to have terminated her employment for “Good Reason” if she voluntarily terminates his employment with the Company under any of the following circumstances:
(i) any demotion or diminution in the Employee’s position, title, reporting position or duties;
(ii) relocation of the Employee’s office to a location more than thirty (30) miles outside of Research Triangle Park, North Carolina; or
(iii) any material breach of this Agreement by the Company.
(b) By the Company for Cause; By the Employee; Death or Disability. If the Employee’s employment is terminated by the Company for Cause during the Employment Period, if Employee terminates employment during the Employment Period or if the Employee’s employment is terminated by reason of the Employee’s death or disability during the Employment Period, the Company shall terminate pay the Executive’s employment other than for Cause, or if Employee the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary (then in effect) through the Date of Termination and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights have no further obligations under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination DateAgreement.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Employment Agreement (Smart Online Inc), Employment Agreement (Smart Online Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Following any termination of Executive’s employment other than for Causeduring the Term, or if the Executive shall terminate not be otherwise compensated for the loss of employment for Good Reasonor the loss of any rights or benefits under this Agreement or any other plans and programs, the Company’s obligations to the Executive shall be except as followsprovided below:
(a) The Company shallIn the event Executive’s employment is terminated for Cause pursuant to Section 4(a), within thirty Executive shall be entitled to receive (i) any unpaid Base Salary through his date of termination, (ii) payment for any accrued but unused vacation or other similar paid time-off, (iii) payment of any vested benefit payable under the Company’s employee benefit plans in accordance with the terms thereof, and (iv) reimbursement for any reasonable business days of expenses incurred prior to such termination for which Executive has complied with the Termination DateCompany’s reimbursement policies (collectively, pay the “Accrued Rights”).
(b) In the event Executive’s employment terminates pursuant to the Section 4(b) due to Executive’s death or Disability, Executive a single lump sum cash payment equal (or his estate or representatives, as applicable) shall be entitled to the sum of the following amountsreceive:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;The Accrued Rights.
(ii) an amount equal to the product of (i) the annual bonus A pro rata Annual Bonus for the calendar year immediately preceding the calendar year in which the Change in Control such termination occurs multiplied by (ii) a fraction, the numerator of which is based on the number of days Executive was employed by the Company during the calendar year of termination, which shall be calculated based on actual performance through the end of such year and on the same basis as other bonus-eligible employees. Such pro rata Annual Bonus shall be paid to Executive in the fiscal year next following the year in which his employment terminates, at the Change same time annual bonuses for such preceding year are paid to the Company’s other bonus-eligible employees but in Control occurs, and any event by no later than the denominator 15th day of which is 365;the third month following the close of such preceding year.
(iii) all amounts previously deferred by With respect to any Eligible Award (as defined below) outstanding at the Executive under any nonqualified deferred compensation plan sponsored by time of such termination, such award shall be treated in the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(ivmanner described in Section 5(e) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and Sirius LTIP or Section 7(e)(i) of the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted WTM LTIP, as applicable, or to the Executive extent granted under a successor plan thereto, shall be treated in a manner set forth in such plan. For avoidance of doubt, in the case of any plan or otherwise which have not become exercisable as Eligible Award that becomes so payable in accordance with the provisions of the date plans referred to in the preceding sentence, payment shall be made by no later than the 15th day of the Change in Control and all stock options (including options vested as third month following the end of the Change year in Control) shall remain exercisable until which such awards become earned based on the achievement of the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediatelyperformance objectives.
(c) Except as provided in subsections (d) and (e), for a one year period following In the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the event Executive’s employment with the Company as a common law employee is terminated by the Company other than for without Cause pursuant to Section 4(c) or is terminated by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor Reason pursuant to the Company shall not prohibit the Executive from receiving the payments and benefits provided Section 4(d) (in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Companyeach case, other than the obligation due to pay death or Disability), Executive shall be entitled to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.receive:
Appears in 2 contracts
Samples: Employment Agreement (Sirius International Insurance Group, Ltd.), Employment Agreement (White Mountains Insurance Group LTD)
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other than for without Cause or Termination by the Executive for Good ReasonReason prior to January 5, 2005. If during the Employment Period, the Company shall terminate terminates the Executive’s employment Executive other than for Cause, or other than in connection with death or Disability as covered by Section 4(c) below or if the Executive shall terminate terminates his employment for Good Reason, in each case prior to January 5, 2005, the Company’s obligations to the Executive Company shall be as follows:
(ai) The Company shall, within thirty business days of the Termination Date, pay to the Executive all Accrued Benefits (as hereinafter defined) in a single lump sum in cash payment equal to within ten (10) days after the sum Date of the following amounts:
(i) to the extent not previously paid, the salary Termination and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal permit Executive and/or Executive’s family, as applicable, to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurscontinue to participate in, and the denominator be entitled to receive benefits under, all medical, prescription, dental, and vision plans of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereonand/or, and not yet paid by at the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to option, reimburse the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and for all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive COBRA payments incurred by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e)him, for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits eighteen (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits18) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf such Date of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offTermination, in each case to the extent applicable to Executive at such Date of Termination. For the avoidance of doubt, in the event Executive is terminated under the circumstances described in the preceding sentence the Executive will not be entitled to receive an Annual Bonus for the fiscal year ended September 30, 2005. For purposes of this Agreement, “Accrued Benefits” shall mean (i) all Base Salary earned or accrued through the Date of Termination to the extent not theretofore paid, (ii) all amounts payable to Executive pursuant to Section 2(b)(ix) that are accrued through the Date of Termination hereof to the extent not theretofore paid, (iii) reimbursement for any and all monies advanced in connection with the Executive’s employment for reasonable expenses incurred by the Executive in accordance with Section 2(b)(vii) or 2(b)(x) hereof through the Date of Termination, and (iv) all other payments and benefits to which the Executive or the Executive’s family or other beneficiaries may be entitled under the terms of any applicable compensation arrangement, benefit plan, program or policy of the Company, including any compensation previously paiddeferred by the Executive (together with any accrued earnings thereon) and not yet paid by the Company and any earned and accrued, but unused vacation pay, in each case through the Date of Termination.
Appears in 2 contracts
Samples: Executive Employment Agreement (Activant Solutions Inc /De/), Executive Employment Agreement (Activant Solutions Inc /De/)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death or by Disability; By the Executive for Good Reason. If Subject to Section 5, if, during the Employment Period, (x) the Company shall terminate the Executive’s employment other than for Cause, death or if Disability or (y) the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(iA) a lump sum cash payment within 30 days after the Date of Termination equal to the aggregate of the following amounts: (1) the Executive’s Annual Base Salary and vacation pay through the Date of Termination, (2) the Executive’s accrued Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election) if such bonus has not been paid as of the Date of Termination, and (3) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (1) through (3), to the extent not previously paid, paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Control;clauses (1) through (3) shall be hereinafter referred to as the “Accrued Obligations”); and
(iiB) an amount equal subject to the product Executive’s delivery (and non-revocation) of an executed release of claims against the Company and its officers, directors, employees and affiliates in substantially the form attached hereto as Exhibit A (i) the annual bonus for “Release”), which Release must be delivered to the calendar year immediately preceding 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 two months after the end of the calendar year in which the Change Date of Termination occurs) (the “Release Deadline”), an amount equal to the sum of (x) the product of two times the Executive’s Annual Base Salary, plus (y) the product of 0.75 times the Executive’s Target Bonus as in Control occurs multiplied by effect for the fiscal year of the Company in which the Date of Termination occurs, payable in a lump sum within 30 days after the Date of Termination; and
(ii) if the Executive makes a timely election to receive COBRA coverage under Section 4980B of the Code, the Company will pay the cost of such coverage during the period it remains in effect, not to exceed 18 months following the Date of Termination (the benefits provided pursuant to this Section 4(a)(ii), the “Post-Employment Health Care Benefits”);
(iii) if the Date of Termination occurs on or after the second anniversary of the Effective Date, all remaining unvested shares of the Promotion Restricted Stock will vest. If the Date of Termination occurs prior to the second anniversary of the Effective Date, a number of the unvested shares of the Promotion Restricted Stock will vest equal to the sum of (i) 33,333 shares of Promotion Restricted Stock plus (ii) 33,333 shares of Promotion Restricted Stock multiplied by a fraction, the numerator of which is the number of days employed by from the Company during latest anniversary of the calendar year in which Effective Date through the Change in Control occursdate of termination, and the denominator of which is 365;
365 (iiirounded down to the nearest whole share). Any shares of the Promotion Restricted Stock which are not vested as of the Date of Termination (after application of this Section 4(a)(iii)) all amounts previously deferred by shall be forfeited immediately upon the Executive under any nonqualified deferred compensation plan sponsored by Date of Termination. The benefits provided pursuant to this Section 4(a)(iii) (the Company, together with any accrued earnings thereon, “Equity Award Vesting Benefits”) shall be subject to the Executive’s delivery of an executed Release prior to the Release Deadline (and not yet paid by the Company;non-revocation thereof); and
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan extent not theretofore paid or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentprovided, the Company shall arrange timely pay or provide to provide the Executive and his family welfare any other amounts or benefits (includingrequired to be paid or provided or that the Executive is eligible to receive under any plan, without limitationprogram, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans policy or practice or contract or agreement of the Company applicable with respect and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date“Other Benefits”). Notwithstanding the foregoingforegoing provisions of Section 4(a)(i), if in the event that the Executive obtains comparable coverage under any welfare benefits provided by another employer, then is a “specified employee” (within the amount meaning of coverage required Section 409A of the Code and with such classification to be provided determined in accordance with the methodology established by the Company hereunder applicable employer) (a “Specified Employee”), amounts and benefits (other than the Accrued Obligations) that are deferred compensation (within the meaning of Section 409A of the Code) that would otherwise be payable or provided under Section 4(a)(i) during the six-month period immediately following the Date of Termination shall instead be reduced by paid, with interest on any delayed payment at the amount of coverage applicable federal rate provided by such other employer’s welfare benefit plans.
(dfor in Section 7872(f)(2)(A) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageInterest”), on the first business day after the date that is six months following the Date of Termination (the “409A Payment Date”). If For the Executive elects to receive COBRA Continuation Coverageavoidance of doubt, the Company shall pay all of parties hereto acknowledge that the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months severance payments and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained benefits described in this Agreement referring are intended to benefits to which be exempt from the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement operation of Section 409A of the Executive as a consultant, an advisor or otherwise as an independent contractor to Code and not “deferred compensation” within the Company shall not prohibit the Executive from receiving the payments and benefits provided in this meaning of Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.409A.
Appears in 2 contracts
Samples: Employment Agreement (Sunrise Senior Living Inc), Employment Agreement (Sunrise Senior Living Inc)
Obligations of the Company Upon Termination. 4.1 If by (a) Good Reason or during the Company other than Window Period; Other Than for Cause Cause, Death -------------------------------------------------------------------- or by the Executive for Good ReasonDisability. If If, during the Employment Period, the Company shall terminate ------------- the Executive’s 's employment other than for Cause, Cause or if Disability or the Executive shall terminate employment either for Good Reason, Reason or without any reason during the Company’s obligations to the Executive shall be as followsWindow Period:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii2) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Highest Annual Bonus and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
365 and (3) the Special Bonus, if due to the Executive pursuant to Section 4(b) (iii), to the extent not theretofore paid and (4) all amounts any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon) and any accrued vacation pay, and in each case to the extent not yet theretofore paid by the Company;
(iv) an amount equal to three (3) times the sum of the amounts described in clauses (1), (2), (3) and (4) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to 2.9 times the Executive’s Annual 's "Base Salary and Amount" (the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to average annual taxable compensation for the Executive under any plan or otherwise which have not become exercisable as of the date of five years preceding the Change in Control and all stock options Date; and
C. a separate lump-sum supplemental retirement benefit (including options vested the amount of such benefit shall be hereinafter referred to as of the Change in Control"Supplemental Retirement Amount") shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded equal to the Executive by difference between (1) the Company shall lapse immediately.
actuarial equivalent (c) Except as provided in subsections (d) and (e), utilizing for a one year period following this purpose the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable actuarial assumptions utilized with respect to the Executive and his family [Company's Retirement Plan] (or any successor plan thereto) (the "Retirement Plan") during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Effective Date) of the benefit payable under the Retirement Plan and any supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") which the Executive would receive if the Executive’s Termination 's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately proceeding the Effective Date. Notwithstanding , and (2) the foregoingactuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Executive obtains comparable coverage under any welfare benefits provided by another employer, then Retirement Plan and the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.SERP; and
(dii) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights for the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B remainder of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation CoverageEmployment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall pay all of the required premiums for 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)(v) 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 as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the 12 months following applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive’s Termination Date.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;
(eiii) If to the Executive elects to convert any group term life insurance to an individual policyextent not theretofore paid or provided, the Company shall timely pay all premiums for 12 months and or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the 90-day period immediately preceding the Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall cease be hereinafter referred to participate in as the Company’s group term life insurance."Other Benefits"); and
(fiv) The each Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected stock option held by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that is outstanding immediately prior to the Change in Controlsuch termination shall, the Executive has been pursuant to its terms and without any further action on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement part of the Executive as a consultant, an advisor Board of Directors or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by Compensation Committee of the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidbecome fully vested and exercisable as of such termination.
Appears in 2 contracts
Samples: Termination Benefits Agreement (Control Devices Inc), Termination Benefits Agreement (Control Devices Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than (a) Termination Other Than for Cause Cause, Death or by the Executive for Good ReasonDisability if Employee ----------------------------------------------------------------- Agrees to Cancellation of Change of Control Agreement. If If, during the ----------------------------------------------------- Employment Period, the Company shall terminate the Executive’s 's employment other than for CauseCause or death or Disability, or if and, subject to (i) the execution by the Executive shall terminate employment for Good Reasonof the Release attached as Exhibit A hereto, and (ii) the automatic cancellation of any right the Executive might otherwise have under the Change of Control Agreement previously entered into between the Executive and the Company’s obligations to , a copy of which is attached as Exhibit B, the Executive shall be as followsentitled to all of the following:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 15 calendar days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii2) an amount equal to the product of (ix) the annual higher of (I) the Minimum Bonus and (II) the Annual Bonus paid or payable, including any bonus or portion thereof, which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months), for the calendar most recently completed fiscal year immediately preceding during the calendar year in which Employment Period, if any (such higher amount being referred to as the Change in Control occurs multiplied by "Highest Annual Bonus") and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
, and (iii3) all amounts any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation 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. an amount equal to the product of (1) three and (2) the highest amount actually paid to the Executive in cash compensation (that is, Annual Base Salary plus bonus(es) actually paid) in any one of the previous three calendar years; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company's qualified defined benefit retirement plan (the "Retirement Plan") and immediately prior to the Effective Date under the Retirement Plan, and any excess or supplemental retirement plan in which the Executive participates (together, the "SERP") which the Executive would receive if the Executive's employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 3(b)(i) and Section 3(b)(ii), over (b) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination;
(ii) all stock options, restricted stock and other stock-based compensation shall become immediately exercisable or vested, as the case may be, and stock options shall be exercisable for three years thereafter;
(iii) for the Continuation Period (as defined below), the Company shall continue to pay the premium for benefits to the Executive and/or the Executive's dependents equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 3(b)(iv) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer- provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility, and provided further that the Executive and the Executive's dependents otherwise are and remain eligible for coverage under the federal law COBRA. The Continuation Period shall be three years. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period;
(iv) the Company shall, at its sole expense as incurred, provide the Executive with reasonable outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion; and
(v) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits, other than (x) severance benefits and (y) any benefits or payments under the Change of Control Agreement (Exhibit B), all rights to which the Executive shall have relinquished as partial consideration for the payments and benefits under this Section 5(a), that are required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other
(b) Termination Other than for Cause, Death or Disability if the Executive ---------------------------------------------------------------------- Does Not Agree to Cancellation of Change of Control Agreement. If, ------------------------------------------------------------- during the Employment Period, the Company shall terminate the Executive's employment other than for Cause, death or Disability, and the Executive elects to maintain in effect the Change of Control Agreement previously paidentered into between the Executive and the Company, a copy of which is attached as Exhibit B, this Agreement shall terminate without further obligations on the part of the Company to the Executive other than obligation to pay to the Executive (x) his or her Annual Base Salary through the Date of Termination, (y) the amount of any compensation previously deferred by the Executive, and (z) Other Benefits, in each case to the extent theretofore unpaid.
Appears in 2 contracts
Samples: Employment Agreement (Crown Paper Co), Employment Agreement (Crown Vantage Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company Employment Period is terminated for any reason, this Agreement shall terminate without further obligations to either party hereto other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations obligation to provide the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive with a single lump sum cash payment within 30 days after the date of termination of the Employment Period equal to the sum aggregate of the following amounts:
: (i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(iiA) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and vacation pay through the date of termination, (B) the Executive’s accrued Annual Bonus.
Bonus for the fiscal year immediately preceding the fiscal year in which the date of termination occurs (bother than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have if such bonus has not become exercisable been paid as of the date of termination, and (C) the Change in Control and all stock options (including options vested Executive’s business expenses that have not been reimbursed by the Company as of the Change date of termination that were incurred by the Executive prior to the date of termination in Controlaccordance with the applicable Company policy, in the case of each of clauses (A) through (C), to the extent not previously paid (the sum of the amounts described in clauses (A) through (C) shall remain exercisable until be hereinafter referred to as the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded “Accrued Obligations”) and (ii) to the extent not theretofore paid or provided, 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 its affiliated companies through the date of termination; provided, however, that if the Employment Period shall be terminated by the Company for Cause (as defined in the Severance Benefits Agreement), the term “Accrued Obligations” shall lapse immediately.
(c) not be deemed to include the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the date of termination occurs. Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentimmediately preceding sentence, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect have no obligation to the Executive hereunder upon the termination of the Employment Period for any reason, and his family during either any additional obligation that the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if Company may have to the Executive obtains comparable coverage under any welfare benefits provided by another employer, then in connection with the amount termination of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company or its affiliates shall be as a common law employee is terminated by provided under, and subject in all respects to the Company other than for Cause or by the Executive for Good Reasonterms and conditions of, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1Severance Benefits Agreement.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Employment Agreement (Washington Prime Group Inc.), Employment Agreement (Washington Prime Group Inc.)
Obligations of the Company Upon Termination. 4.1 (a) If by the Company other than terminates the Employee’s employment for Cause or by Disability of the Executive for Good Reason. If during Employee, or the Employment PeriodEmployee’s employment terminates due to the Employee’s death, then the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
Employee (i) the pro-rata portion of the Employee’s Base Salary through the Date of Termination to the extent not previously paidtheretofore paid in accordance with the Company’s then current payroll practices, the salary and any accrued paid time off through the date of the Change in Control;
but no further Base Salary; (ii) an amount equal to any earned, but unpaid, Annual Bonus, except if the product of (i) the annual bonus Employee was terminated for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
Cause; (iii) all amounts previously deferred by unreimbursed business expenses to the Executive under extent reimbursable in accordance with the Company’s then current policy regarding the same; and (iv) any nonqualified deferred compensation amount payable as a result of the Employee’s participation in, or benefits under, any benefit plan sponsored by of the Company, together which amount shall be payable in accordance with any accrued earnings thereon, the terms and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum conditions of the Executive’s Annual Base Salary and the Annual Bonussuch benefit plans.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to If the Executive under any plan Company terminates the Employee’s employment without Cause or otherwise which have not become exercisable as the Employee terminates his employment for Good Reason or the Employee’s employment terminates following the expiration of the date of the Change in Control and all stock options (including options vested Term as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as a result of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive written notice delivered by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (epursuant to Section 2(a), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all to the Employee (i) the Employee’s Base Salary through the greater of three months from the date of such termination and the remainder of the required premiums for the Executive and/or the Executive’s family for the Term as severance, but not more than 12 months following of severance; (ii) any earned, but unpaid, Annual Bonus; (iii) all unreimbursed business expenses to the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate extent reimbursable in accordance with the Company’s group term life insurance.
then current policy regarding the same; and (fiv) any amount payable as a result of the Employee’s participation in, or benefits under, any benefit plan of the Company, which amount shall be payable in accordance with the terms and conditions of such benefit plans. The Company shall, at its sole expense, as incurred, pay on behalf of Executive up Employee has no obligation to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive seek or obtain other engagements or employment to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits mitigate any damages to which the Executive Employee may be entitled shall be read by reason of any termination of this Agreement pursuant to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.16(b).
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Term Employment Agreement (Generation Hemp, Inc.), Term Employment Agreement (Generation Hemp, Inc.)
Obligations of the Company Upon Termination. 4.1 5.1 If by the Company other than for Cause or by the Executive for Good ReasonConstructive Termination or by the Company Other Than for Cause or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for CauseCause or Disability, or if the Executive shall terminate employment for Good ReasonConstructive Termination, the Company’s 's obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Datesuch termination of employment, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary Annual Base Salary and any accrued paid time off through the date of the Change in ControlTermination Date;
(ii) an amount equal to the product of (i) the annual bonus Annual Bonus (as defined in Section 3.2(b)) for the calendar year immediately preceding the calendar year Performance Period in which the Change in Control Termination Date occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company actually worked during the calendar year in which the Change in Control occurssuch Performance Period, and the denominator of which is 365;; or, if greater, the amount of any Annual Incentive paid or payable to the Executive with respect to the Performance Period for the year in which the Termination Date occurs; and
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;.
(ivb) an amount The Company shall, within thirty business days of such termination of employment, pay the Executive a cash payment equal to three (3) times the sum of the Executive’s 's Annual Base Salary and the Annual BonusSeverance Incentive.
(bc) The On the Termination Date, the Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise Plan which have not become exercisable as of the date of the Change in Control Termination Date and all stock options (including options vested as of the Change in ControlTermination Date) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control the Termination Date are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company pursuant to the LTIP, a successor plan or otherwise shall lapse immediately.
(cd) Except as provided in subsections (de) and (ef), for a one year period following during the Executive’s termination Employment Period (or until such later date as any Welfare Plan of employmentthe Company may specify), the Company shall arrange continue to provide to the Executive and his the Executive's family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits, but excluding medical or other health plans) which are at least as favorable as those provided under the most favorable welfare plans Welfare Plans of the Company applicable (i) with respect to the Executive and his or her family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Termination Date, or (ii) with respect to other peer executives and their families during the Employment Period. In determining benefits under such Welfare Plans, the Executive’s 's annual compensation attributable to base salary and incentives for any plan year or calendar year, as applicable, shall be deemed to be not less than the Executive's Annual Base Salary and Annual Incentive. The cost of the welfare benefits provided under this Section 5.1(d) shall not exceed the cost of such benefits to the Executive immediately before the Termination Date or, if less, the Effective Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided Welfare Plans sponsored by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans's Welfare Plans.
(de) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company's group term life insurance.
(f) The Executive’s 's eligibility for any retiree medical coverage shall be determined under the relevant plan, with additional age or service credited provided in the Executive's employment agreement, if any. The Executive's rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“"COBRA Continuation Coverage”"). If the Executive is not eligible for retiree medical coverage and elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s 's family for the 12 months following after the Termination Date. For purposes of determining eligibility for and the time of commencement of retiree benefits under any Welfare Plans of the Company, the Executive’s 's credited service shall be the Executive's credited service at the Termination DateDate plus five years and the Executive's age shall be deemed to be the Executive's age at the Termination Date plus five years. If the Executive is eligible for additional credited service or deemed age under an employment agreement or other contract with the Company, the additional service and age provided by this Section 5.1(f) shall be in addition to any service and/or age credit provided under an employment agreement or contract.
(eg) The Executive shall be fully vested in the Company's Executive Supplemental Retirement Plan and Benefit Restoration Plan or any successor or replacement plans (the "Supplemental Plans"). For purposes of the Supplemental Plans, the Executive's credited service shall be the Executive's credited service at the Termination Date plus five years and the Executive's age shall be deemed to be the Executive's age at the Termination Date plus five years. The amount payable under Section 5.1(b) of this Agreement shall be taken into account for purposes of determining the amount of benefits to which the Executive is entitled under the Supplemental Plans as though the amount was earned equally over the Employment Period. If the Executive elects to convert any group term life insurance to is eligible for additional credited service or deemed age under an individual policyemployment agreement or other contract with the Company, the Company additional service and age provided by this Section 5.1(g) shall pay all premiums for 12 months and the Executive shall cease be in addition to participate in the Company’s group term life insuranceany service and/or age credit provided under an employment agreement or contract.
(fh) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(gi) To For the extent that immediately prior to the Change in Controlperiod stated below, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit continue to pay all premiums on the Executive's whole life insurance policy (the "Policy") issued under the Executive from receiving the Life Insurance Program. The payments and benefits provided under Section 5.1(i) are in this lieu of any payments under Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay 5.1(d) with respect to the Executive in cash Policy. The premium payments shall be made until the Executive’s unpaid salary through earlier of:
(i) the fifth anniversary of the Termination Date, plus any accrued paid time off, in each case or
(ii) the later to occur of the extent not previously paidtenth anniversary of the Policy or the Executive reaching age 64.
Appears in 2 contracts
Samples: Employment Continuity Agreement (Dominion Resources Inc /Va/), Employment Continuity Agreement (Virginia Electric & Power Co)
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company for other than Cause or Disability or Termination by the Employee for Good Reason or following a Change in Control. If the Employee's employment is terminated by the Company for any reason, other than Cause or Disability or by the Executive Employee (x) for Good Reason. If Reason or (y) for any reason during the Employment Periodperiod immediately following a Change in Control and ending on the six (6) month anniversary of a Change in Control:
(i) the Company shall pay to the Employee, (A) within five (5) business days after the Date of Termination, any earned but unpaid Annual Base Salary and any expense reimbursement payments owed to the Employee, and (B) no later than March 15 of the year in which the Date of Termination occurs, any earned but unpaid Annual Bonus payments relating to the prior calendar year (the "Accrued Obligations");
(ii) the Company shall pay to the Employee, within thirty (30) business days after the Date of Termination, a prorated Annual Bonus based on (A) the target Annual Bonus opportunity in the year in which the Date of Termination occurs or the prior year if no target Annual Bonus opportunity has yet been determined and (B) the fraction of the year the Employee was employed;
(iii) the Company shall pay to the Employee, within thirty (30) business days after the Date of Termination, a lump-sum payment equal to 300% of the sum of (x) the Employee's Annual Base Salary in effect immediately prior to the Date of Termination (disregarding any reduction in Annual Base Salary to which the Employee did not expressly consent in writing) and (y) the highest Annual Bonus paid to the Employee by the Company within the three (3) years preceding his termination of employment or, if higher, the target Annual Bonus opportunity in the year in which the Date of Termination occurs;
(iv) all stock option, restricted stock and other equity-based incentive awards granted by the Company that were outstanding but not vested as of the Date of Termination shall become immediately vested and/or payable, as the case may be; and
(v) for a three (3) year period after the Date of Termination, the Company shall terminate will provide or cause to be provided to the Executive’s employment other than for CauseEmployee (and any covered dependents), with life and health insurance benefits (but not disability insurance benefits) substantially similar to those the Employee and any covered dependents were receiving immediately prior to the Notice of Termination at the same level of benefits and at the same dollar cost to the Employee as is available to the Company's executive officers generally, provided that the Employee's continued receipt of such benefits is possible under the general terms and provisions of the applicable plans and programs, and provided further, that such benefits would not be taxable to the Employee or subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that the Employee's participation in any such plan or program is prohibited, the Company shall, at its expense, arrange to provide the Employee with benefits substantially similar to those which the Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is prohibited. If the Company arranges to provide the Employee and covered dependents with life and health insurance benefits, those benefits will be reduced to the extent comparable benefits are received by, or if made available to, the Executive shall terminate employment for Good ReasonEmployee (at no greater cost to the Employee) by another employer during the three (3) year period following the Employee's Date of Termination. The Employee must report to the Company any such benefits that he receives or that are made available. In lieu of the benefits described in this Section 8(a)(v), the Company’s obligations , in its sole discretion, may elect to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive Employee a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued monthly premiums that would have been paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during to provide such benefits to the calendar year Employee for each month such coverage is not provided under this Section 8(a)(v). Nothing in which this Section 8(a)(v) will extend the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual BonusCOBRA continuation coverage period.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Employee without Good Reason. If, during If the Employment Period, Employee's employment is terminated (i) by the Company terminates the Executive’s employment for Cause or if (ii) by the Executive terminates employment other than for Employee without Good Reason (including death or disabilityexcluding for this purpose the Employee terminating his employment without Good Reason during the six (6) month period immediately following a Change in Control in accordance with Section 8(a)), the Company's only obligation under this Agreement shall terminate without further obligation by the Company, other than the obligation to pay be payment of any earned but unpaid Annual Base Salary and any expense reimbursement payments owed to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidEmployee.
Appears in 2 contracts
Samples: Employment Agreement (Fidelity National Financial, Inc.), Employment Agreement (Fidelity National Information Services, Inc.)
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other than for without Cause or by the Executive Employee for Good Reason. If during the Employment Period, the Company shall terminate terminates the Executive’s employment other than for Cause, of the Employee without Cause (as defined in Section 4(b) above) or if the Executive shall terminate Employee terminates his employment for Good ReasonReason (as defined below) at any time during which the Employee does not directly, or indirectly through one or more intermediaries, control the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) the Company shall pay the Employee the portion of his base salary in effect at the time of termination as he may be entitled to the extent not previously paid, the salary and any accrued paid time off through receive for services rendered prior to the date of the Change in Controlsuch termination;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during shall pay the calendar year in which the Change in Control occurs, and the denominator of which is 365Employee for any accrued but unused vacation;
(iii) for a period of twelve (12) months following the date on which the Employee's employment with the Company terminates, the Company shall continue to pay the Employee his base salary in effect at the time of his termination of employment and shall continue to provide the Employee with all amounts previously deferred benefits specified in this Agreement, with no adverse tax consequences to the Employee, as if he had remained employed by the Executive Company pursuant to this Agreement during the entire such twelve (12) month period; and
(iv) the Company shall take all action necessary to provide that the all stock options held by the Employee shall become fully vested and exercisable, to the extent not already fully vested and exercisable, as of the date of such termination of employment. For purposes of this Agreement, the Employee shall be deemed to have terminated his employment for "Good Reason" if he voluntarily terminates his employment with the Company under any nonqualified deferred compensation plan sponsored by of the following circumstances:
(i) any demotion or diminution in the Employee's position, title, reporting position or duties;
(ii) any reduction in the Employee's base salary;
(iii) failure to reelect Employee as a member of the Company, together with any accrued earnings thereon, and not yet paid by the Company's board of directors;
(iv) an amount equal to three (3) times the sum relocation of the Executive’s Annual Base Salary and the Annual Bonus.Employee's office to a location more than thirty (30) miles outside of Research Triangle Park, North Carolina; or
(bv) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as material breach of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Employment Agreement (Smart Online Inc), Employment Agreement (Smart Online Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shallTERMINATION BY THE COMPANY (OTHER THAN TERMINATIONS FOR CAUSE, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (eDEATH OR DISABILITY), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”)OR TERMINATION BY THE EXECUTIVE FOR GOOD REASON. If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for any reason other than for Cause (other than a termination for Disability or if death), or the Executive terminates his employment other than for Good Reason (including death or disability)Reason, this Agreement then, except for any termination to which Section 5(d) applies, the Company shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in (i) a cash payment equal to two times the sum of (A) the Executive’s Annual Base Salary immediately prior to the Date of Termination and (B) the greater of (1) the annual bonus earned by the Executive for the last completed fiscal year prior to the fiscal year in which the Date of Termination occurs and (2) the annual bonus the Executive would have earned for the fiscal year in which the Date of Termination occurs absent such termination (which amount shall be based upon the Company’s (and if applicable the Executive’s) actual performance against target (expressed as a percentage of achievement of targeted performance) applicable to the portion of the performance period during which the Executive was employed, with such percentage level of achievement annualized for the full fiscal year) (the greater of such amounts being referred to hereafter as the “Applicable Bonus Amount”); and (ii) any unpaid salary through amounts of the Executive’s Annual Base Salary for periods prior to the Date of Termination Date, plus any accrued paid time offand earned annual bonuses for completed fiscal years prior to the Date of Termination. The payment described in clause (i) of the preceding sentence shall be made ratably over the two-year period following the Date of Termination, in each case accordance with the Company’s normal payroll practices and the payments described in clause (ii) of the preceding sentence shall be made within 30 days of the Date of Termination. The Company shall also provide to the extent Executive (and, as applicable, his eligible dependents), in the event of such a termination continued participation at the Company’s expense in the Company’s medical, dental, prescription and vision care insurance plans (or substantially equivalent coverage under an alternative arrangement) for six months following the Date of Termination (or, if earlier, until the date the Executive obtains alternative coverage from a subsequent employer) following which, if no such alternative coverage has been obtained, the Executive will be entitled to elect continuation coverage (“COBRA”) in accordance with the provisions of Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), which COBRA coverage period shall begin at the close of the period of such continued participation. For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by Section 5(d)), if the Executive’s employment is terminated by the Company without Cause either (i) during the 120 day period prior to the execution of an agreement, the consummation of which would result in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not previously paidsuch Change in Control actually occurs).
Appears in 2 contracts
Samples: Employment Agreement (Vertis Inc), Employment Agreement (Vertis Inc)
Obligations of the Company Upon Termination. 4.1 If by (a) Termination By the Company other than for Without Cause (Including by Reason of Non-Renewal) or by By the Executive for For Good Reason. If during the Employment Period, the Company shall terminate terminates the Executive’s employment other than for and this Agreement without Cause, or if the Executive shall terminate terminates his/her employment and this Agreement for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to The Company shall pay the extent not previously paidExecutive within thirty (30) days after the effective date of termination or by such earlier date if required by applicable law, (A) the salary and any accrued paid time off aggregate amount of the Executive’s earned but unpaid Base Salary then in effect, (B) incurred but unreimbursed documented reasonable reimbursable business expenses through the date of such termination, and (C) any other amounts due under applicable law, in each case earned and owing through the Change in Control;date of termination (the “Accrued Obligations”), and the Executive’s rights under the Benefit Plans shall be determined under the provisions of the Benefit Plans (the “Other Benefits”).
(ii) an amount equal In addition to the product Accrued Obligations and the Other Benefits, the Company shall pay to the Executive the amount of (i) any Annual Bonus earned, but not yet paid, with respect to the annual bonus for fiscal year prior to the calendar year immediately preceding the calendar fiscal year in which the Change date of termination of the Executive’s employment with the Company occurs (the “Earned Annual Bonus”), which such payment shall be made to the Executive in Control occurs accordance with Section 3(b) hereof.
(iii) In addition to the Accrued Obligations, the Other Benefits and the Earned Annual Bonus, subject to (A) Section 5(c) below, (B) the Executive timely signing, delivering, and not revoking the Release (as defined in this Section 5(a)(iii)), and (C) the Executive’s compliance with the Executive’s post-termination obligations in Sections 6, 7, 9, and 10 hereof following the termination of the Executive’s employment with the Company, the Executive shall be entitled to receive the following additional benefits:
1. Severance equal to the sum of: (a) one and 1⁄2 times the sum of the Base Salary in effect on the date of termination plus the greater of the Target Bonus for the current fiscal year and the actual Annual Bonus paid during the prior fiscal year and (b) a prorated Annual Bonus for the current fiscal year (calculated as the Target Bonus that would have been payable for the entire fiscal year assuming target was met, multiplied by (ii) a fraction, the numerator of which is equal to the number of days employed by the Company during Executive worked in the calendar year in which the Change in Control occursapplicable fiscal year, and the denominator of which is 365;equal to the total number of days in such fiscal year) (the “Severance”), which shall be payable in equal installments over an eighteen (18) month period in accordance with the Company’s regular payroll practices and subject to all customary withholding and deductions.
(iii) all amounts previously deferred by 2. If the Executive timely and properly elects continuation coverage under any nonqualified deferred compensation plan sponsored by the CompanyConsolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), together with any accrued earnings thereonthe Company shall pay to the COBRA administrator on the Executive’s behalf the full amount of the COBRA premium due for medical, dental, and not yet paid by vision coverage for the Company;
(iv) an amount equal to three (3) times the sum Executive and any of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted covered dependents which is equivalent to the coverage the Executive under any plan or otherwise which have not become exercisable as maintained prior to termination of the date of Executive’s employment with the Change in Control and all stock options Company (including options vested as of the Change in Control“COBRA Subsidy”) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as earliest of: (i) the eighteen (18) month anniversary of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentdate; and (ii) the date on which the Executive either receives or becomes eligible to receive substantially similar coverage from another employer. The Executive shall bear full responsibility for applying for COBRA continuation coverage, and the Company shall arrange have no obligation to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to such coverage if the Executive and his family during either the (i) 90-day period immediately preceding the Change fails to elect COBRA benefits in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Datea timely fashion. Notwithstanding the foregoing, if the Company determines in its sole discretion that it can no longer provide the COBRA Subsidy pursuant to the terms of the Company’s welfare plan or underlying insurance policies or without causing the Company to incur additional expense as a result of noncompliance with applicable law, the Company instead will pay Executive obtains comparable a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue the group health coverage under any welfare benefits provided by in effect on the date of Executive’s termination for Executive and Executive’s eligible dependents until the earliest of: (i) the eighteen (18) month anniversary of the Executive’s termination date; and (ii) the date on which the Executive either receives or becomes eligible to receive substantially similar coverage from another employer.
3. All issued and unvested Annual Equity Awards shall immediately vest; provided, then however, that any Annual Equity Award that is still subject to performance based vesting at the amount time of coverage required such termination shall only vest when and to the extent the Compensation Committee certifies that the performance goals are actually met. It shall be provided a condition to the Executive’s right to receive the aforementioned additional benefits that the Executive execute and deliver to the Company an effective general release of claims in a form prescribed by the Company hereunder Company, which form shall be reduced by include, among other customary terms and conditions, the amount survival of coverage provided by such other employer’s welfare benefit plans.
(d) The the Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable lawobligations in Sections 6, including7, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of9, and participated in the incentive or employee benefit plans of, a subsidiary 10 of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If following termination of the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by Company, but shall not include any additional obligations upon the Executive beyond those provided for Good Reasonin, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor inconsistent with, this Agreement (the “Release”), within twenty-one (21) days (or, to the Company shall not prohibit extent required by law, forty-five (45) days) following the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates date of termination of the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by with the Company, other than and that the obligation Executive not revoke such Release during any applicable revocation period (the combined review period and revocation period hereinafter referred to pay as the “Consideration Period”). Subject to Section 5(c) below, upon timely execution, delivery and non-revocation of the Release by the Executive, the installment payments of the Severance shall begin on the first normal payroll date that is after the later of (I) the date on which the Executive delivered to the Executive in cash Company the Release signed by the Executive’s unpaid salary through , or (II) the Termination Dateend of any applicable revocation period (unless a longer period is required by law). Notwithstanding the foregoing, plus any accrued paid time offif the earliest payment date determined under the preceding sentence is in one taxable year of the Executive and the latest possible payment date is in a second taxable year of the Executive, in each case to the extent not previously paidfirst installment payment of Severance shall be made on the first normal payroll date that immediately follows the last date of the Consideration Period.
Appears in 2 contracts
Samples: Executive Employment Agreement (Trulieve Cannabis Corp.), Executive Employment Agreement (Trulieve Cannabis Corp.)
Obligations of the Company Upon Termination. 4.1 If by (a) Termination By the Company other than for Without Cause (Including by Reason of Non-Renewal) or by By the Executive for For Good Reason. If during the Employment Period, the Company shall terminate terminates the Executive’s employment other than for and this Agreement without Cause, or if the Executive shall terminate terminates his/her employment and this Agreement for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to The Company shall pay the extent not previously paidExecutive within thirty (30) days after the effective date of termination or by such earlier date if required by applicable law, (A) the salary and any accrued paid time off aggregate amount of the Executive’s earned but unpaid Base Salary then in effect, (B) incurred but unreimbursed documented reasonable reimbursable business expenses through the date of such termination, and (C) any other amounts due under applicable law, in each case earned and owing through the Change in Control;date of termination (the “Accrued Obligations”), and the Executive’s rights under the Benefit Plans shall be determined under the provisions of the Benefit Plans (the “Other Benefits”).
(ii) an amount equal In addition to the product Accrued Obligations and the Other Benefits, the Company shall pay to the Executive the amount of (i) any Annual Bonus earned, but not yet paid, with respect to the annual bonus for fiscal year prior to the calendar year immediately preceding the calendar fiscal year in which the Change date of termination of the Executive’s employment with the Company occurs (the “Earned Annual Bonus”), which such payment shall be made to the Executive in Control occurs accordance with Section 3(b) hereof.
(iii) In addition to the Accrued Obligations, the Other Benefits and the Earned Annual Bonus, subject to (A) Section 5(c) below, (B) the Executive timely signing, delivering, and not revoking the Release (as defined in this Section 5(a)(iii)), and (C) the Executive’s compliance with the Executive’s post-termination obligations in Sections 6, 7, 9, and 10 hereof following the termination of the Executive’s employment with the Company, the Executive shall be entitled to receive the following additional benefits:
1. Severance equal to the sum of: (a) two times the sum of the Base Salary in effect on the date of termination plus the greater of the Target Bonus for the current fiscal year and the actual Annual Bonus paid during the prior fiscal year and (b) a prorated Annual Bonus for the current fiscal year (calculated as the Target Bonus that would have been payable for the entire fiscal year assuming target was met, multiplied by (ii) a fraction, the numerator of which is equal to the number of days employed by the Company during Executive worked in the calendar year in which the Change in Control occursapplicable fiscal year, and the denominator of which is 365;equal to the total number of days in such fiscal year) (the “Severance”), which shall be payable in equal installments over a twenty-four (24) month period in accordance with the Company’s regular payroll practices and subject to all customary withholding and deductions.
(iii) all amounts previously deferred by 2. If the Executive timely and properly elects continuation coverage under any nonqualified deferred compensation plan sponsored by the CompanyConsolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), together with any accrued earnings thereonthe Company shall pay to the COBRA administrator on the Executive’s behalf the full amount of the COBRA premium due for medical, dental, and not yet paid by vision coverage for the Company;
(iv) an amount equal to three (3) times the sum Executive and any of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted covered dependents which is equivalent to the coverage the Executive under any plan or otherwise which have not become exercisable as maintained prior to termination of the date of Executive’s employment with the Change in Control and all stock options Company (including options vested as of the Change in Control“COBRA Subsidy”) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as earliest of: (i) the twenty-four (24) month anniversary of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentdate; and (ii) the date on which the Executive either receives or becomes eligible to receive substantially similar coverage from another employer. The Executive shall bear full responsibility for applying for COBRA continuation coverage, and the Company shall arrange have no obligation to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to such coverage if the Executive and his family during either the (i) 90-day period immediately preceding the Change fails to elect COBRA benefits in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Datea timely fashion. Notwithstanding the foregoing, if the Company determines in its sole discretion that it can no longer provide the COBRA Subsidy pursuant to the terms of the Company’s welfare plan or underlying insurance policies or without causing the Company to incur additional expense as a result of noncompliance with applicable law, the Company instead will pay Executive obtains comparable a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue the group health coverage under any welfare benefits provided by in effect on the date of Executive’s termination for Executive and Executive’s eligible dependents until the earliest of: (i) the twenty-four (24) month anniversary of the Executive’s termination date; and (ii) the date on which the Executive either receives or becomes eligible to receive substantially similar coverage from another employer.
3. All issued and unvested Annual Equity Awards shall immediately vest; provided, then however, that any Annual Equity Award that is still subject to performance based vesting at the amount time of coverage required such termination shall only vest when and to the extent the Compensation Committee certifies that the performance goals are actually met. It shall be provided a condition to the Executive’s right to receive the aforementioned additional benefits that the Executive execute and deliver to the Company an effective general release of claims in a form prescribed by the Company hereunder Company, which form shall be reduced by include, among other customary terms and conditions, the amount survival of coverage provided by such other employer’s welfare benefit plans.
(d) The the Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable lawobligations in Sections 6, including7, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of9, and participated in the incentive or employee benefit plans of, a subsidiary 10 of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If following termination of the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by Company, but shall not include any additional obligations upon the Executive beyond those provided for Good Reasonin, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor inconsistent with, this Agreement (the “Release”), within twenty-one (21) days (or, to the Company shall not prohibit extent required by law, forty-five (45) days) following the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates date of termination of the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by with the Company, other than and that the obligation Executive not revoke such Release during any applicable revocation period (the combined review period and revocation period hereinafter referred to pay as the “Consideration Period”). Subject to Section 5(c) below, upon timely execution, delivery and non-revocation of the Release by the Executive, the installment payments of the Severance shall begin on the first normal payroll date that is after the later of (I) the date on which the Executive delivered to the Executive in cash Company the Release signed by the Executive’s unpaid salary through , or (II) the Termination Dateend of any applicable revocation period (unless a longer period is required by law). Notwithstanding the foregoing, plus any accrued paid time offif the earliest payment date determined under the preceding sentence is in one taxable year of the Executive and the latest possible payment date is in a second taxable year of the Executive, in each case to the extent not previously paidfirst installment payment of Severance shall be made on the first normal payroll date that immediately follows the last date of the Consideration Period.
Appears in 2 contracts
Samples: Executive Employment Agreement (Trulieve Cannabis Corp.), Executive Employment Agreement (Trulieve Cannabis Corp.)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by By the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan Other Than for Death or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates 's employment other than for Good Reason (including due to the Executive's death or disability)Disability, this Agreement shall terminate without further obligation by the CompanyCompany shall, other than except as provided in clause (ii) below, pay the obligation to pay amounts described in subparagraph (i) below to the Executive in a lump sum in cash within 30 days after the Date of Termination:
(i) The amounts to be paid in a lump sum as described above are:
(A) The Executive's accrued but unpaid cash compensation (the "Accrued Obligations"), which shall equal the sum of (1) any portion of the Executive’s unpaid salary 's Annual Base Salary through the Date of Termination Date, plus that has not yet been paid; (2) any Bonus that the Executive has earned for a prior full fiscal year that has ended prior to the Date of Termination but which has not yet been calculated and paid; (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) that has not yet been paid time off, in each case (subject to any applicable provisions of any deferred compensation plan with respect to the extent payment thereof); and (4) any accrued but unpaid vacation pay; and
(B) Severance pay equal to the Annual Base Salary; provided, however, that in connection with a termination by the Company other than (1) for Cause or (2) due to the Executive's death or Disability, such severance pay shall be equal to the Annual Base Salary multiplied by the number of years constituting the Post-Termination Restriction Period (as defined in Section 8(a)(ii)). (For example, if the Company, pursuant to its Restriction Election (as defined in Section 8(a)(ii)), elects a two-year Post-Termination Restriction Period, then severance pay will be equal to two times the Annual Base Salary.)
(ii) Notwithstanding the foregoing, if the Executive's employment is terminated for Cause, the Executive shall not previously paidbe entitled to the payments contemplated by clause (i)(B) of this Section 5(a) and the payment to the Executive in connection therewith shall be limited to payment of the Accrued Obligations and the Company shall have no further obligations under this Agreement. For purposes of this Agreement, "Cause" shall mean (1) conviction of the Executive by a court of competent jurisdiction of a felony (excluding felonies under the Motor Vehicle Code); (2) any act of intentional fraud in connection with his duties under this Agreement; (3) any act of gross negligence or wilful misconduct with respect to the Executive's duties under this Agreement; and (4) any act of wilful disobedience in violation of specific reasonable directions of the Board consistent with the Executive's duties.
Appears in 2 contracts
Samples: Employment Agreement (Amscan Holdings Inc), Employment Agreement (Amscan Holdings Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause (a) Other Than For Cause, Death or by the Executive for Disability, or For Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. ------------------------------------------------------------- If, during the Employment Period, the Company terminates the Executive’s 's employment for Cause any reason other than Cause, death or if Disability, or the Executive terminates employment for Good Reason, the Company shall continue to provide the Executive with the compensation and benefits set forth in paragraphs (a), (b) and (c) of Section 3 and the continuing protection of Section 5(d) as if he had remained employed by the Company through the end of the Employment Period and then retired. The Incentive Compensation for such period shall be equal to the maximum Incentive Compensation that the Executive would have been eligible to earn for such period. In lieu of stock options, restricted stock and other stock-based awards, the Executive shall be paid cash equal to the fair market value (without regard to any restrictions) of the stock options, restricted stock and other stock-based awards that would otherwise have been granted. To the extent that any benefits described in Section 3(c) cannot be provided pursuant to the plan or program provided by the Company for its executives, the Company shall provide such benefits outside such plan or program at no additional cost (including without limitation tax cost) to the Executive and his family. Finally, during any period when the Executive is eligible to receive medical, prescription or dental benefits under another employer-provided plan, the benefits provided by the Company under this Section 5(a) may be made secondary to those provided under such other plan. In addition to the foregoing, any restricted stock outstanding on the Date of Termination and all options outstanding on the Date of Termination shall be fully vested and exercisable and shall remain in effect and exercisable until the end of the Employment Period (absent the prior death of the Executive) as if the Executive remained employed until then and shall thereafter remain exercisable in accordance with the applicable terms respecting retired employees. The payments and benefits provided pursuant to this Section 5(a) are intended as liquidated damages for a termination of the Executive's employment by the Company other than for Good Reason (including death Cause or disability), this Agreement shall terminate without further obligation Disability or for the actions of the Company leading to a termination of the Executive's employment by the CompanyExecutive for Good Reason, other than and shall be the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidsole and exclusive remedy therefor.
Appears in 2 contracts
Samples: Merger Agreement (Wisconsin Electric Power Co), Merger Agreement (Wicor Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than (a) Termination Other Than for Cause Cause, Death or by the Executive for Good ReasonDisability if Employee ----------------------------------------------------------------- Agrees to Cancellation of Change of Control Agreement. If If, during the ----------------------------------------------------- Employment Period, the Company shall terminate the Executive’s 's employment other than for CauseCause or death or Disability, or if and, subject to (i) the execution by the Executive shall terminate employment for Good Reasonof the Release attached as Exhibit A hereto, and (ii) the automatic cancellation of any right the Executive might otherwise have under the Change of Control Agreement previously entered into between the Executive and the Company’s obligations to , a copy of which is attached as Exhibit B, the Executive shall be as followsentitled to all of the following:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 15 calendar days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii2) an amount equal to the product of (ix) the annual higher of (I) the Minimum Bonus and (II) the Annual Bonus paid or payable, including any bonus or portion thereof, which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months), for the calendar most recently completed fiscal year immediately preceding during the calendar year in which Employment Period, if any (such higher amount being referred to as the Change in Control occurs multiplied by "Highest Annual Bonus") and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
, and (iii3) all amounts any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation pay, in each case to the extent not previously 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. an amount equal to the product of (1) three and (2) the highest amount actually paid to the Executive in cash compensation (that is, Annual Base Salary plus bonus(es) actually paid) in any one of the previous three calendar years; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company's qualified defined benefit retirement plan (the "Retirement Plan") and immediately prior to the Effective Date under the Retirement Plan, and any excess or supplemental retirement plan in which the Executive participates (together, the "SERP") which the Executive would receive if the Executive's employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 3(b)(i) and Section 3(b)(ii), over (b) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination;
(ii) all stock options, restricted stock and other stock-based compensation shall become immediately exercisable or vested, as the case may be, and stock options shall be exercisable for three years thereafter;
(iii) for the Continuation Period (as defined below), the Company shall continue to pay the premium for benefits to the Executive and/or the Executive's dependents equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 3(b)(iv) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer- provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility, and provided further that the Executive and the Executive's dependents otherwise are and remain eligible for coverage under the federal law COBRA. The Continuation Period shall be three years. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period;
(iv) the Company shall, at its sole expense as incurred, provide the Executive with reasonable outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion; and
(v) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits, other than (x) severance benefits and (y) any benefits or payments under the Change of Control Agreement (Exhibit B), all rights to which the Executive shall have relinquished as partial consideration for the payments and benefits under this Section 5(a), that are required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 2 contracts
Samples: Employment Agreement (Crown Vantage Inc), Employment Agreement (Crown Paper Co)
Obligations of the Company Upon Termination. 4.1 (1) If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, (i) the Company shall terminate the Executive’s employment other than for without Cause, or if Disability of the Executive, (ii) the Executive’s employment shall terminate due to the Executive’s death or Disability or (iii) the Executive shall terminate employment her employment, for Good Reason, then the Company’s obligations to the Executive Company shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive within ten (10) days after the Date of Termination the sum of (A) the Executive’s Base Salary for two years, plus (B) all unreimbursed business expenses and other accrued but unpaid compensation described in Section 4(b); (y) without duplication, any annual Bonus earned but not yet paid for any fiscal year ending prior to the fiscal year in which the Date of Termination occurs, payable at the time otherwise scheduled to be paid (the amounts described in (x) and (y), the “Accrued Obligations”); and (z) any amount arising from the Executive’s participation in, or benefits under, any Benefit Plans (“Accrued Plan Amounts”), which amounts shall be payable in accordance with the terms and conditions of such Benefit Plans, as the case may be. The Accrued Plan Amounts shall include but not be limited to any accrued but unused PTO.
(2) Not in limitation of Section 6(a), if the Company shall terminate the Executive’s employment without Cause, then upon the execution and delivery by the Executive of a single lump sum cash payment general release of claims in favor of the Company in a form reasonably satisfactory to the Company (“Release”), the Company shall pay to the Executive (i) a termination settlement which shall be paid in substantially equal installments in accordance with the customary payroll practices of the Company, in an amount equal to the sum of the following amounts:
Base Salary (i) to the extent not previously paid, the salary and any accrued paid time off through as in effect on the date of the Change in Control;
termination) for twenty-four (24) months, and (ii) an amount equal to the product annual Bonus which the Executive would have been entitled to receive in respect of (i) the annual bonus year of termination based on the achievement of any performance objectives for the calendar Company and the Executive at no less than target level for such year immediately preceding of termination, prorated for the calendar amount of the year in which Executive was employed, which amount shall be paid to the Change in Control occurs multiplied by Executive when the Company pays bonuses to its employees generally, but no later than April 15 of the year following the year of termination (ii) a fractionsuch salary continuation and bonus payments, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;“Severance Benefits”).
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided set forth in subsections (d) and (e), for a one year period following the Executive’s termination of employmentthis Section 5, the Company shall arrange have no further severance, payment or other benefit obligations to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, continuance of benefits under the Benefit Plans to the Date of Termination and such obligations which may be expressly provided to be paid on termination or to survive on termination as set forth in any other written agreement entered into simultaneously or hereafter between the Executive and the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation and approved by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidBoard.
Appears in 2 contracts
Samples: Employment Agreement (Panacea Life Sciences Holdings, Inc.), Employment Agreement (Exactus, Inc.)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for (a) Good Reason; Other Than for Cause, Death or Disability. If If, ------------------------------------------------------ during the Employment Period, the Company shall terminate the Executive’s Officer's employment other than for Cause, Cause or if Disability or the Executive Officer shall terminate employment for Good Reason, the Company’s obligations parties acknowledge that the Officer will sustain actual damages, the amount of which is indefinite, uncertain and difficult of exact ascertainment because of the uncertainties of successfully relocating and seeking a comparable position. In order to avoid dispute as to the Executive amount of such damages and the mutual expense and inconvenience such dispute would entail, the Company and the Officer have agreed hereby that the Company shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive Officer compensation as provided below. It is hereby agreed that in the event of such termination by the Company, the Officer shall receive such amounts as herein provided, not as a single penalty, but as the Officer's agreed compensation and sole damages for the termination of this Agreement, in lieu of the Officer's proof of his actual damages on that account. If, during the Employment Period, the Company shall terminate the Officer's employment other than for Cause or Disability or the Officer shall terminate employment for Good Reason, the Company shall pay to the Officer in a lump sum in cash payment equal to within 5 days after the sum Date of Termination the aggregate of the following amounts:
(ia) the sum of (1) the Officer's Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii2) an amount equal to the product of (ix) the annual higher of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Officer was employed for less than 12 full months), for the calendar most recently completed fiscal year immediately preceding during the calendar year in which Employment Period, if any (such higher amount being referred to as the Change in Control occurs multiplied by "Highest Annual Bonus") and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
365 and (iii3) all amounts any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, Officer (together with any accrued interest or earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation pay, in each case to the extent not previously paidtheretofore 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 Officer's Annual Base Salary and (y) the Highest Annual Bonus. To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Officer any other amounts or benefits required to be paid or provided or which the Officer is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"). In addition, any options to purchase shares of the Company's common stock shall immediately vest and become exercisable as of the Date of Termination and, notwithstanding anything to the contrary in the Officer's option agreements with the Company, the options shall be exercisable for a period of 12 months after the Date of Termination (but in no event beyond the expiration date applicable to such options). Any restrictions on restricted stock grants and performance share grants shall also be eliminated.
Appears in 2 contracts
Samples: Change of Control Employment Agreement (Basin Exploration Inc), Change of Control Employment Agreement (Basin Exploration Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company Employment Period is terminated for any reason, this Agreement shall terminate without further obligations to either party hereto other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations obligation to provide the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive with a single lump sum cash payment within 30 days after the date of termination of the Employment Period equal to the aggregate of the following amounts: (i) (A) the Executive’s annual base salary and vacation pay through the date of termination, (B) the Executive’s accrued annual bonus for the fiscal year immediately preceding the fiscal year in which the date of termination occurs (other than any portion of such annual bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election) if such bonus has not been paid as of the date of termination, and (C) the Executive’s business expenses that have not been reimbursed by the Company as of the date of termination that were incurred by the Executive prior to the date of termination in accordance with the applicable Company policy, in the case of each of clauses (A) through (C), to the extent not previously paid (the sum of the following amounts:
amounts described in clauses (iA) through (C) shall be hereinafter referred to as the “Accrued Obligations”) and (ii) to the extent not previously paidtheretofore paid or provided, any other amounts or benefits required to be paid or provided or that the salary Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and any accrued paid time off its affiliated companies through the date of termination; provided, however, that if the Change Employment Period shall be terminated by the Company for Cause (as defined in Control;
(ii) an amount equal the Severance Benefits Agreement), the term “Accrued Obligations” shall not be deemed to include the product of (i) the Executive’s annual bonus for the calendar fiscal year immediately preceding the calendar fiscal year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration datetermination occurs. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentimmediately preceding sentence, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect have no obligation to the Executive hereunder upon the termination of the Employment Period for any reason, and his family during either any additional obligation that the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if Company may have to the Executive obtains comparable coverage under any welfare benefits provided by another employer, then in connection with the amount termination of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company or its affiliates shall be as a common law employee is terminated by provided under, and subject in all respects to the Company other than for Cause or by the Executive for Good Reasonterms and conditions of, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1Severance Benefits Agreement.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Employment Agreement (Washington Prime Group Inc.), Employment Agreement (Glimcher Realty Trust)
Obligations of the Company Upon Termination. 4.1 5.1 If by the Company other than for Cause or by the Executive for Good ReasonConstructive Termination or by the Company Other Than for Cause or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for CauseCause or Disability, or if the Executive shall terminate employment for Good ReasonConstructive Termination, the Company’s 's obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Datesuch termination of employment, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary Annual Base Salary and any accrued paid time off through the date of the Change in ControlTermination Date;
(ii) an amount equal to the product of (i) the annual bonus Annual Bonus (as defined in Section 3.2(b)) for the calendar year immediately preceding the calendar year Performance Period in which the Change in Control Termination Date occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company actually worked during the calendar year in which the Change in Control occurssuch Performance Period, and the denominator of which is 365; or, if greater, the amount of any Annual Incentive paid or payable to the Executive with respect to the Performance Period for the year in which the Termination Date occurs;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;; and
(ivb) an amount The Company shall, within thirty business days of such termination of employment, pay the Executive a cash payment equal to three (3) times the sum of the Executive’s 's Annual Base Salary and the Annual BonusSeverance Incentive.
(bc) The On the Termination Date, the Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise Plan which have not become exercisable as of the date of the Change in Control Termination Date and all stock options (including options vested as of the Change in ControlTermination Date) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control the Termination Date are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company pursuant to the LTIP, a successor plan or otherwise shall lapse immediately.
(cd) Except as provided in subsections (de) and (ef), for a one year period following during the Executive’s termination Employment Period (or until such later date as any Welfare Plan of employmentthe Company may specify), the Company shall arrange continue to provide to the Executive and his the Executive's family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits, but excluding medical or other health plans) which are at least as favorable as those provided under the most favorable welfare plans Welfare Plans of the Company applicable (i) with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Termination Date, or (ii) with respect to other peer executives and their families during the Employment Period. In determining benefits under such Welfare Plans, the Executive’s 's annual compensation attributable to base salary and incentives for any plan year or calendar year, as applicable, shall be deemed to be not less than the Executive's Annual Base Salary and Annual Incentive. The cost of the welfare benefits provided under this Section 5.1(d) shall not exceed the cost of such benefits to the Executive immediately before the Termination Date or, if less, the Effective Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided Welfare Plans sponsored by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans's Welfare Plans.
(de) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company's group term life insurance.
(f) The Executive’s 's eligibility for any retiree medical coverage shall be determined under the relevant plan, with additional age or service credited provided in the Executive's employment agreement, if any. The Executive's rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“"COBRA Continuation Coverage”"). If the Executive is not eligible for retiree medical coverage and elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s 's family for the 12 months following after the Termination Date. For purposes of determining eligibility for and the time of commencement of retiree benefits under any Welfare Plans of the Company, the Executive’s 's credited service shall be the Executive's credited service at the Termination DateDate plus five years and the Executive's age shall be deemed to be the Executive's age at the Termination Date plus five years. If the Executive is eligible for additional credited service or deemed age under an employment agreement or other contract with the Company, the additional service and age provided by this Section 5.1(f) shall be in addition to any service and/or age credit provided under an employment agreement or contract.
(eg) The Executive shall be fully vested in the Company's Executive Supplemental Retirement Plan and Benefit Restoration Plan or any successor or replacement plans (the "Supplemental Plans"). For purposes of the Supplemental Plans, the Executive's credited service shall be the Executive's credited service at the Termination Date plus five years and the Executive's age shall be deemed to be the Executive's age at the Termination Date plus five years. The amount payable under Section 5.1(b) of this Agreement shall be taken into account for purposes of determining the amount of benefits to which the Executive is entitled under the Supplemental Plans as though the amount was earned equally over the Employment Period. If the Executive elects to convert any group term life insurance to is eligible for additional credited service or deemed age under an individual policyemployment agreement or other contract with the Company, the Company additional service and age provided by this Section 5.1(g) shall pay all premiums for 12 months and the Executive shall cease be in addition to participate in the Company’s group term life insuranceany service and/or age credit provided under an employment agreement or contract.
(fh) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Employment Continuity Agreement (Virginia Electric & Power Co), Employment Continuity Agreement (Dominion Resources Inc /Va/)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by (a) By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, Death or if Disability or the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
(iA) the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, (2) the salary and Executive’s business expenses that are reimbursable pursuant to Section 4(b)(v) but have not been reimbursed by the Company as of the Date of Termination; (3) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; (4) any accrued vacation pay to the extent not theretofore paid time off through (the date sum of the Change amounts described in Control;
subclauses (ii1), (2), (3) and (4), the “Accrued Obligations”) and (5) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Recent Average Bonus and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;365 (the “Pro Rata Bonus”); provided that notwithstanding the foregoing, if the Executive has made an election to defer any portion of the Annual Base Salary or the Annual Bonus described in clauses (1) or (3) above, then for all purposes of this Section 6 (including, without limitation, Sections 6(b) through 6(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clause (1) or clause (3), and such portion shall not be considered as part of the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined below); and
(iiiB) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three the product of (31) times two and (2) the sum of (x) the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (iiy) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.Recent Average Bonus;
Appears in 2 contracts
Samples: Change of Control Employment Agreement (Aspen Insurance Holdings LTD), Change of Control Employment Agreement (Aspen Insurance Holdings LTD)
Obligations of the Company Upon Termination. 4.1 If (a) Good Reason; by the Company other than Other Than for Cause Cause, Death or by the Executive for Good ReasonDisability. If If, during the Employment PeriodTerm, (i) the Company shall terminate the Executive’s employment other than for Cause (it being understood that a termination resulting from Executive’s death or Disability shall not constitute a termination “other than for Cause, ,” which such events are addressed in Section 4(b)) or if the (ii) Executive shall terminate his employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) The Company shall pay to Executive (or the executor of his estate or representative, if applicable), within 10 days after the Date of Termination, a lump sum in cash equal to (1) Executive’s Annual Base Salary through the Date of Termination to the extent earned but not previously yet paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i2) the annual bonus for unpaid Bonus due Executive, if any, with respect to the calendar year immediately preceding the calendar year in which Executive’s employment is terminated, (3) the value of any vacation accrued, but not taken, in the calendar year in which Executive’s employment is terminated, and (4) the amount due for any reimbursable expenses incurred by Executive prior to the Date of Termination (together, the “Accrued Obligations”).
(ii) The Company shall pay to Executive (or the executor of his estate or representative, if applicable), within the 60-day period provided in Section 4(d) below, a lump sum in cash (less applicable taxes) equal to four times Executive’s Annual Base Salary; provided, however, if the Company, in its sole discretion, elects to waive the non-competition restrictions contained in Section 9(a)(i) through 9(a)(iii) and Section 9(b), the amount to be paid Executive shall be reduced to two times his Annual Base Salary; provided further, however, if Executive’s Date of Termination occurs within three months preceding or on or within two years following a Change in Control, then the amount of severance payable pursuant to this Section 4(a)(ii) shall be four times Executive’s Annual Base Salary, whether or not the Company waives the non-competition restrictions in Section 9 (with respect to a Date of Termination that occurs within the three-month period preceding a Change in Control, if Executive has already been paid pursuant to this Section 4(a)(ii) before the Change in Control occurs multiplied by (ii) a fractionand Executive is entitled to an additional amount pursuant to this Section 4(a)(ii), the numerator of which is the number of such additional amount shall be paid within 10 days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately).
(ciii) Except as provided in subsections (d) and (eSubject to Section 4(d), for a one year period following if Executive (and the Executive’s termination eligible members of employmenthis family) timely elect COBRA continuation coverage, the Company shall arrange to provide monthly premium for the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans first 12 months of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable such COBRA continuation coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance monthly premium charged to an individual policy, the Company shall pay all premiums active employee for 12 months and the Executive shall cease to participate in the Company’s group term life insurancesimilar coverage.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Executive Employment Agreement (Regency Energy Partners LP), Executive Employment Agreement (Regency Energy Partners LP)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death or by Disability; By the Executive for Good Reason. If Subject to Section 5 of this Agreement, if, during the Employment Period, (x) the Company shall terminate terminates the Executive’s employment other than for Cause, death or if Disability or (y) the Executive shall terminate terminates employment with the Company for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(iA) a lump sum cash payment within thirty (30) days following the Date of Termination equal to the aggregate of the following amounts: (1) the Executive’s Annual Base Salary and vacation pay accrued through the Date of Termination; (2) any Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election); and (3) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination and were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (1), (2), and (3), to the extent not previously paid, paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Controlclauses (1), (2), and (3) shall be hereinafter referred to as the “Accrued Obligations”);
(B) subject to the Executive’s delivery (and non-revocation) of an executed release of claims against the Company and the Partnership, and their respective officers, directors, employees and affiliates, in substantially the form attached hereto as Exhibit A (the “Release”), which Release must be delivered to the Company not later than forty-five (45) calendar days after the Date of Termination, and not revoked (as to the waiver of age discrimination claims contained therein) in accordance with the terms thereof, continuation of the Annual Base Salary as of the Date of Termination (disregarding any reduction in Annual Base Salary that constitutes Good Reason), payable in accordance with the Company’s regular payroll practices, for two years following the Date of Termination; provided that each such payment shall be increased by an amount equal to (i) two times the greater of (x) the current Target Bonus and (y) the average of the Annual Bonus actually received by the Executive in the prior two (2) fiscal years (including, but not limited to, any portion of the Annual Bonus paid in the form of Equity Awards) (the greater of (x) and (y), the “Relevant Bonus Amount”), divided by (ii) an the number of Annual Base Salary payments during such two-year period; further provided that such payments shall commence on the first regular payroll date which is sixty (60) or more days following the Date of Termination, with such first payment including any amount which would have been paid on any regular payroll date following the Date of Termination and prior to such first payment; and
(C) a lump sum cash payment within thirty (30) days following the Date of Termination equal to the product of (ia) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Relevant Bonus Amount and (iib) a fraction, the numerator of which is the number of days employed by elapsed in the Company during fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;365 (the “Pro-Rata Bonus”).
(ii) any then-unvested compensatory equity awards held by the Executive shall immediately vest as of the Date of Termination; provided that, for clarity, “equity awards” for this purpose shall not include the “Contingent Consideration” (as defined in the Merger Agreement), the terms of which are fully incorporated in the Merger Agreement.
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan extent not theretofore paid or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentprovided, the Company shall arrange timely pay or provide to provide the Executive and his family welfare any other amounts or benefits (includingrequired to be paid or provided or that the Executive is eligible to receive under any plan, without limitationprogram, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans policy or practice or contract or agreement of the Company applicable with respect to through the Executive Date of Termination (such other amounts and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by hereinafter referred to as the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageOther Benefits”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 2 contracts
Samples: Employment Agreement (Cole Credit Property Trust III, Inc.), Employment Agreement (Cole Credit Property Trust III, Inc.)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The By the Company shall, within thirty business days of the Termination Date, pay to Other Than for Cause; or By the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment under this Agreement (other than for Cause Cause) or if the Executive terminates employment under this Agreement for Good Reason:
(1) the Executive shall be entitled to (i) continued payment for twelve (12) months after the Date of Termination of the Executive’s current base salary (as in effect on the Date of Termination), and (ii) a bonus equal to the average of the annual bonuses earned by the Executive over the three complete years (or if less than three years, the average bonus earned during such shorter period) preceding the Date of Termination (that is, not including the bonus year that includes the Date of Termination) to be paid on the first business day at the conclusion of the eighteen month period after the Date of Termination; and
(2) for the twelve (12) month period following the Date of Termination, the Executive will receive a waiver of the applicable premium otherwise payable for COBRA continuation coverage for the Executive, his spouse and eligible dependents (to the extent covered on the Date of Termination) for health, prescription, dental and vision benefits; provided, however, that to the extent COBRA continuation coverage eligibility expires (unless such expiration is due to eligibility for other group health insurance or Medicare) before the end of such twelve month period, the Executive will receive payment, on an after-tax basis, of an amount equal to the premium the Company would have otherwise waived for COBRA coverage. The obligations of the Company to provide benefits under this Section 5(a)(2) shall terminate on the date of occurrence of the first to occur of any of the following, if any of the following should occur prior to the end of the twelve (12) month period: (i) the date of commencement of eligibility of the Executive under the group health plan of any other employer or (ii) the date of commencement of eligibility of the Executive for Medicare benefits. In addition, the Executive shall be entitled to receive executive level outplacement assistance under any outplacement assistance program then being maintained by the Company in accordance with the terms of any such program. The Executive shall also become vested in any outstanding options, restricted stock or other equity incentive awards only to the extent provided for under the terms governing such equity incentive award. The Company shall also pay, or cause to be paid, to the Executive, in a lump sum in cash within 30 days after the Date of Termination (or, in the case of the pro-rated Annual Bonus Amount, at the time such bonus would otherwise be paid), the Executive’s accrued but unpaid cash compensation (the “Accrued Obligations”), which shall include but not be limited to, (W) the Executive’s Base salary through the Date of Termination that has not yet been paid (X) an amount representing a 100% target bonus for the Executive’s salary grade for the year of termination, multiplied by 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 (the “Annual Bonus Amount”), (Y) any accrued but unpaid vacation or PTO pay, and (Z) similar unpaid items that have accrued and as to which the Executive has become entitled as of the Date of Termination, including declared but unpaid bonuses and unreimbursed employee business expenses; provided, however, that the Company’s obligation to make any payments, or cause any payments to be made, under this paragraph (a) to the extent any such payment shall not have accrued as of the day before the Date of Termination shall also be conditioned upon the Executive’s execution, and non-revocation, of a written release, substantially in the form attached hereto as Exhibit 1, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment under this Agreement or the termination thereof (other than for Good Reason (including death or disability), any entitlements under the terms of this Agreement shall terminate without further obligation by to indemnification or under any other plans or programs of the CompanyCompany in which the Executive participated and under which the Executive has accrued and is due a benefit). If any payment, compensation or other than the obligation to pay benefit provided to the Executive in cash connection with his employment termination is determined, in whole or in part, to constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code and the Executive is a specified employee as defined in Section 409A(a)(2)(B)(i) and Income Tax Regulations under Section 409A, no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the Date of Termination (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to the Executive during the period between the termination date and the New Payment Date shall be paid to the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offwithout interest, in each case to a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the extent not previously paidday immediately following the New Payment Date shall be paid without delay over the time period originally scheduled, in accordance with the terms of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (PharMerica CORP)
Obligations of the Company Upon Termination. 4.1 If (i) Upon the termination of this Agreement: (A) by the Executive pursuant to paragraph 5(a)(ii); or (B) by the Company other than for Cause pursuant to paragraph 5(b)(ii), (iii), or by the Executive for Good Reason. If during the Employment Period, (iv) the Company shall terminate the Executive’s employment have no further obligations hereunder other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations payment of all compensation and other benefits payable to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of such termination, including any earned but unpaid bonus under Section 4(b), all of which shall be paid on or before the Change Company’s next regularly scheduled payday unless such amount is not then-calculable, in Control;which case payment shall be made on the first regularly scheduled payday after the amount is calculable (provided that in the case of a termination by the Company pursuant to paragraph 5(b)(ii) or (iii), then (1) Executive (or his estate, as applicable) shall be entitled to receive payment of any bonus earned in the year prior to the year of termination but that is unpaid as of the termination date, to be paid at the same time such bonus would have been paid if no such termination had occurred (the “Earned But Unpaid Bonus”) and (2) All unvested stock options will all vest upon the Termination Date and the time for the Executive to exercise all options granted and vested shall be equal to the term of the option (the “Termination Options”).
(ii) Upon termination of this Agreement: (A) by the Executive pursuant to paragraph 5(a)(i); or (B) by the Company pursuant to paragraph 5(b)(i) and provided that the Executive first executes and does not revoke a release agreement within the time period then-specified by the Company but in any event no later than twenty (20) days after the date of termination (the “Release”): (1) the Company shall pay the Executive an amount equal to twelve (24) months of Executive’s then-current Base Salary (less all applicable tax withholdings) payable in installments during the product one year period immediately following the termination date in accordance with the then-current generally applicable payroll schedule of the Company commencing on the first regularly scheduled pay date of the Company processed after Executive has executed, delivered to the Company and not revoked the Release (with the first payment to include a catchup for any amounts that would have been paid had the Release been effective on the termination date); (2) conditioned on Executive’s proper and timely election to continue the Company’s health insurance benefits under COBRA, or under applicable state law, reimbursement of the additional costs incurred by Executive for continuing such benefits at the same level in which Executive participated prior to the date Executive’s employment terminated for the shorter of (ia) twelve (12) months from the date of termination or (b) until the Executive obtains reasonably comparable coverage, with such reimbursements to begin at the same time as severance pay set forth in Section 5(c)(ii)(A); (3) the Earned But Unpaid Bonus (if any), to be paid at the same time such bonus would have been paid if no such termination had occurred; (4) all stock options, restricted stock unit and other stock-based awards granted to Executive that were scheduled to vest during the 12 month period immediately following Executive’s termination of employment shall become immediately vested and exercisable (if applicable) and with respect to restricted stock units and similar awards, including the RSUs described in Section 4(d) herein, shall be settled within 30 days after the termination date; and (5) Executive shall be entitled to receive his annual bonus for the calendar year immediately preceding of termination as determined by the calendar year in which the Change in Control occurs multiplied by (ii) a fractionBoard, the numerator of which is pro-rated based on the number of days that Executive was employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s such termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits employment occurred (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by paid at the Company hereunder shall be reduced by the amount of coverage provided by same time such other employer’s welfare benefit plansbonus would have been paid if no such termination had occurred).
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
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Samples: Executive Employment Agreement (Kiromic Biopharma, Inc.), Executive Employment Agreement (Kiromic Biopharma, Inc.)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason(a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for Cause, Cause or if Disability or the Executive shall terminate employment either for Good Reason, Reason or without any reason during the Company’s obligations to the Executive shall be as followsWindow Period:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously paid, deferred by the salary Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid time off through (the date sum of the Change amounts described in Control;clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the amount (iisuch amount shall be hereinafter referred to as the "Severance Amount") an amount equal to the product of (i1) three and (2) the annual sum of (x) the Executive's Annual Base Salary and (y) any bonus for described in Section 4(b)(ii) paid or payable in respect of the calendar most recently completed fiscal year immediately preceding of the calendar year in which the Change in Control occurs multiplied by (ii) a fractionCompany; and, the numerator of which is the number of days employed provided further, that such amount shall be reduced by the Company during present value (determined as provided in Section 280G(d)(4) of the calendar year in which Internal Revenue Code of 1986, as amended (the Change in Control occurs, and "Code")) of any other amount of severance relating to salary or bonus continuation to be received by the denominator Executive upon termination of which is 365;
(iii) all amounts previously deferred by employment of the Executive under any nonqualified deferred compensation plan sponsored by severance plan, severance policy or severance arrangement of the Company, together with any accrued earnings thereon, and not yet paid by the Company;; and
(iv) an amount C. a separate lump sum supplemental retirement benefit equal to three the difference between (31) times the sum of actuarial equivalent (utilizing for this purpose the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable actuarial assumptions utilized with respect to the Executive and his family Employees Retirement Plan for Pogo Producing Company (or any successor plan thereto) (the "Retirement Plan") during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Applicable Date) of the benefit payable under the Retirement Plan and any supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") which the Executive would receive if the Executive’s Termination 's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90- day period immediately preceding the Applicable Date. Notwithstanding , and (2) the foregoingactuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Applicable Date) of the Executive's actual benefit (paid or payable), if any, under the Executive obtains comparable coverage under any welfare benefits provided by another employer, then Retirement Plan and the SERP (the amount of coverage required to be provided by the Company hereunder such benefit shall be reduced by hereinafter referred to as the amount of coverage provided by such other employer’s welfare benefit plans."Supplemental Retirement Amount"); and
(dii) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights for the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B remainder of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation CoverageEmployment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall pay all of the required premiums for 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 employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Date, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the 12 months following applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive’s Termination Date.Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(eiii) If to the Executive elects to convert any group term life insurance to an individual policyextent not theretofore paid or provided, the Company shall timely pay all premiums for 12 months and or provide to the Executive shall cease and/or the Executive's family any other amounts or benefits required to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive be paid or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to provided or which the Executive may be entitled and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Date (such other amounts and benefits shall be read hereinafter referred to refer to such subsidiaryas the "Other Benefits").
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) By Executive for Good Reason or By the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, Death or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of Disability Not During the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in In Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ReasonPeriod. If, during the Employment Period, the Company terminates Executive’s employment without Cause (other than due to death or Disability), including by providing notice to Executive pursuant to Section 3(a) that the Employment Period will not be extended and the Employment Period is terminated, or Executive terminates employment for Good Reason, and, in each case, Executive is not entitled to any amounts or benefits pursuant to Section 4(b):
(i) The Company shall pay to Executive, in a lump sum in cash within 30 days after the Date of Termination, subject to Section 10(b), the aggregate of the following amounts: the sum of (A) Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (B) Executive’s business expenses that are reimbursable pursuant to Section 2(b)(viii) of this Agreement but have not been reimbursed by the Company as of the Date of Termination; and (C) Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such Annual Bonus has been determined to have been earned but has not been paid as of the Date of Termination (the sum of the amounts described in subclauses (A), (B), and (C), the “Accrued Obligations”);
(ii) Subject to Section 10(b), on the 61st day after the Date of Termination, the Company shall, subject to Section 4(e), pay to Executive a lump sum cash amount equal to the product obtained by multiplying (A) 2.0 by (B) the sum of the Executive’s Annual Base Salary and Target Bonus (without regard to any reduction thereto);
(iii) Subject to Section 10(b), on the 61st day after the Date of Termination, the Company shall, subject to Section 4(e), pay to Executive a lump sum cash amount equal in value to Executive’s accrued but unvested benefits, if any, under the Company’s Deferred Supplemental Compensation Plan as of the Date of Termination; and
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to Executive any Other Benefits (as defined in Section 5) in accordance with the terms of the underlying plans or agreements. Other than as set forth in this Section 4(a), in the event of a termination of Executive’s employment for by the Company without Cause or if the Executive terminates employment (other than due to death or Disability), including by providing notice to Executive pursuant to Section 3(a) that the Employment Period will not be extended, and the Employment Period is terminated, or by Executive for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offReason, in each case where Section 4(b) does not apply, the Company shall have no further obligation to Executive under this Agreement.
(b) By Executive for Good Reason or By the Company other than for Cause, Death, or Disability During the Change in Control Period. If, during the Employment Period, the Company terminates Executive’s employment without Cause (other than due to death or Disability), including by providing notice to Executive pursuant to Section 3(a) that the Employment Period will not be extended, or Executive terminates employment for Good Reason, in each case, within a period of two years after a Change in Control or the eight month period ending on the Change in Control (the “Change in Control Period”), the Company will pay and provide to Executive the amounts and benefits specified in Section 4(b)(i)-(v) herein and in lieu of the amounts and benefits provided in Section 4(a).
(i) The Company shall pay to Executive, in a lump sum in cash within 30 days after the Date of Termination, subject to Section 10(b), the aggregate of the Accrued Obligations.
(ii) Subject to Section 10(b), on the 61st day after the Date of Termination, the Company shall, subject to Section 4(e), pay to Executive a lump sum cash amount equal to the product of (1) 2.25 multiplied by (2) the sum of Executive’s Annual Base Salary and Target Bonus (without regard to any reduction thereto);
(iii) Subject to Section 10(b), on the 61st day after the Date of Termination, the Company shall, subject to Section 4(e), pay to Executive a lump sum cash amount equal in value to Executive’s accrued but unvested benefits, if any, under the Company’s Deferred Supplemental Compensation Plan as of the Date of Termination;
(iv) Subject to Section 4(e), automatic vesting in full (to the extent not previously paidvested) of all time-vested or performance-vested restricted stock, RSUs or similar rights to acquire capital stock of the Company granted by the Company to Executive (with performance-vested awards vesting at the target level); and
(v) To the extent not theretofore paid or provided, the Company shall timely pay or provide to Executive any Other Benefits (as defined in Section 5) in accordance with the terms of the underlying plans or agreements. Other than as set forth in this Section 4(b) of this Agreement, in the event of a termination of Executive’s employment by the Company without Cause (other than due to death or Disability), including by providing notice to Executive pursuant to Section 3(a) that the Employment Period will not be extended, or by Executive for Good Reason, in each case within a period of two years after a Change in Control or the eight month period ending on the Change in Control, the Company shall have no further obligation to Executive under this Agreement.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If The Executive agrees that the amounts payable under this Section 4 are in lieu of any other claims the Executive may have with regard to the termination of her employment with the Company and shall be the Executive's sole and exclusive remedy for any such claims. The Executive agrees to execute and not to revoke a general release of claims in the form attached hereto as Exhibit A (except for completion of the appropriate matters in square brackets) in favor of the Company, its Affiliates and shareholders and their employees and directors waiving any claims against such entities or persons in connection with the Executive's employment or termination of employment (other than any statutory claims) as a condition of receipt of the amounts payable under this Section 4.
(a) Termination by the Company other than Than for Cause or Cause/by the Executive for Good Reason/by reason of the Executive's death or Disability. If during the Employment PeriodCompany terminates the Executive's employment without Cause under the provisions of Section 3(b)(ii) above (or under section 3(b)(i) with less than 24 months notice) or the Executive resigns for Good Reason or the Executive's employment terminates by reason of the Executive's death or Disability, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shallwill, within thirty business 14 days of the Termination DateDate of Termination, pay to the Executive (or the Executive's estate, as the case may be) and the Executive will be contractually entitled to receive a single lump sum cash payment equal to the sum aggregate of the following amounts:(together the "Severance Payment")
(i) twice the Annual Base Salary in effect immediately prior to the extent not previously paid, the salary Date of Termination; and any accrued paid time off through the date of the Change in Control;
(ii) twice the last Annual Bonus paid to the Executive in respect of a complete fiscal year of the Company (or, in the event of a termination without Cause or resignation for Good Reason or termination of employment due to death or Disability prior to determination of an Annual Bonus in respect of the fiscal year 2004, twice the Target Bonus); provided, that solely in the event of a termination of the Executive's employment by reason of the Executive's death or Disability, the aggregate amount payable under clauses (i) and (ii) shall in no event be less than $3 million. In addition, (except in the case of termination as a result of death) the Company will procure that the Executive continues to participate in the private medical plan for 24 months following the Date of Termination at the same level of cover as was in place immediately prior to the termination of the Executive's employment. If continued cover is not possible at the same level of cover for all or any part of the 24 months period, the Company will pay to the Executive a sum equal to the product cost the Executive would have to incur to obtain such insurance(s) cover in an individual capacity in the open market, subject to a cost limit of (i) the annual bonus for the calendar year immediately pound)35,000. The Executive shall also be entitled to receive any Annual Bonuses earned in respect of any completed fiscal years preceding the calendar year in which the Change in Control Date of Termination occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under extent that any plan or otherwise which such Annual Bonuses have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Controlalready been paid) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder calculated and paid in accordance with Section 2(b)(ii). The severance obligation under this Section 4(a) shall be reduced by the amount of compensation payments and insurance coverage provided received by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable lawduring the notice period given under Section 3(b)(i), includingif any. In addition, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, both the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease be released from any obligation to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expensesell or purchase, as incurredthe case may be, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected any Notes that have not yet been purchased by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement satisfaction of the Executive as a consultant, an advisor or otherwise as an independent contractor to Additional Investment Amount and the Company restriction set forth in Section 5(h) shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1lapse.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the (a) By Company other than Other Than for Cause or by the Disability or By Executive for Good Reason. If If, during the Employment Effective Period, the Company shall terminate the Executive’s 's employment other than for CauseCause or Disability, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within thirty (30) days after the sum Date of Termination the aggregate of the following amounts:
(iA) The sum of (1) the Executive's then current annual base salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
; (ii2) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Executive's Recent Average Bonus (iias defined below) and (y) a fraction, the numerator of which is the number of days employed by in the Company during then current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is three hundred and sixty-five (365;
); (iii3) all amounts any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon, thereon and as adjusted to reflect any other appreciation or depreciation in value); and (4) any accrued vacation pay; in each case to the extent not yet theretofore paid by the Company;
(iv) an amount equal to three (3) times the sum of the amounts described in parts (1), (2), (3) and (4), above, being hereinafter referred to as the "Accrued Obligations"). For purposes of this Agreement, Executive’s Annual Base Salary and 's Recent Average Bonus shall be the Annual Bonus.
average annualized (bfor any fiscal year consisting of less than twelve (12) The Executive shall become fully vested in any and all stock incentive awards granted full months or with respect to which the Executive under has been employed by the Company for less than twelve (12) full months) bonus paid or payable, before taking into account any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock optiondeferral, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.and its affiliated companies in respect of the three (3) fiscal years immediately preceding the fiscal year in which the termination of Executive's employment occurs (if Executive was not employed by the Company in a given fiscal year, that year will be excluded from the calculation of Recent Average Bonus); and
(B) The amount (such amount being hereinafter referred to as the "Severance Amount") equal to the product of multiplying (l) the sum of (i) the Executive's then current monthly base salary (without, in the event of a termination of the Executive's employment pursuant to Section 4(c)(ii) hereof, giving effect to any reduction in the Executive's base salary) and (ii) the Executive's Recent Average Bonus divided by 12 and (2) the number of months determined in accordance with Exhibit A attached to this Agreement, which Exhibit A sets forth a specific number of months or describes a method of determining a specific number of months on the basis of the Executive's then current (a) completed years of service with the Company and its affiliates, (b) annual base salary and (c) Except age; provided, however, that such amount shall be reduced by the present value (determined as provided in subsections Section 280G(d)(4) of the Internal Revenue Code of 1986, as amended (dthe "Code")) and (e), for a one year period following of any other amount of severance relating to salary or bonus continuation to be received by the Executive’s , upon such termination of employment, under any other severance plan, policy or arrangement of the Company. One-third of the Severance Amount (the "Non-Compete Payment") shall be deemed to be allocable to the performance of the covenants applicable to Executive pursuant to the Confidentiality and Non-Competition Agreement attached hereto as Exhibit B;
(A) At the Date of Termination, stock options, restricted stock, and other awards relating to stock under equity incentive plans or programs of the Company and its affiliates which would have become vested (non-forfeitable) if Executive's employment had continued for thirty-six (36) months thereafter, excluding awards that require performance goals to be achieved in addition to passage of time and continued employment, will be immediately vested and exercisable, and any such stock options and other outstanding stock options already vested at or before the Date of Termination shall remain outstanding and exercisable for a period that is the greater of one year after the Date of Termination (but in no event after the stated expiration date of such option) or such longer period as may be provided under the applicable plan or program, and any such awards subject to settlement at a date later than the vesting date shall be immediately settled; and
(B) At the Date of Termination, any then outstanding award opportunity under the SIP will be terminated and settled by payment to Executive of an award determined as follows: The Compensation Committee of the Company's Board of Directors will determine the level of performance achieved (core net interest margin compared to actual peer median net interest margin during the same period) through the nearest practicable date to the Date of Termination, and compare it to the "Adjusted NIM Target." The Adjusted NIM Target will be calculated by subtracting the value of the Company's core net interest margin compared to actual peer median at the beginning of the performance period ("Baseline NIM") from the target core net interest margin under the SIP, then multiplying this figure by a fraction the numerator of which is the number of days in the performance period through the Date of Termination and the denominator of which is the number of days in the entire performance period (that fraction being the "Proration Fraction"), and then adding that figure to the Baseline NIM. The Compensation Committee will then make any other adjustments required or permitted under the SIP, and will determine the corresponding number of shares that would have been earned over the entire performance period based on such level of performance. Executive's final award will then be this number of shares multiplied by the Proration Fraction, then adjusted downward (but not below zero) by the amount (if any) paid under Section 3(b) in respect of the SIP at the time of the Change in Control. This final award will be paid immediately in cash. If the SIP would not permit the payment to Executive of an award as specified in this subparagraph (ii)(B), the Company shall arrange to make a payment to the Executive substantially equivalent in value to the award that otherwise would have been provided under this subparagraph (ii)(B).
(iii) For thirty-six (36) months after the Date of Termination, or for such longer period as any other 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, if the Executive's employment had not been terminated, in accordance with (A) the welfare benefit plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other peer executives and their families during the ninety (90)-day period immediately preceding the Effective Date or (B) if more favorable to the Executive, those in effect generally from time to time thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such continuation of such benefits for the applicable period herein set forth being hereinafter referred to as "Welfare Benefit Continuation"); provided that if such continued coverage is not permitted by the applicable plans or by applicable law, the Company shall provide the Executive and/or Executive's family with comparable benefits of equal value; and provided further that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed during the thirty-six (36) month period immediately following the Date of Termination and to have retired on the last day of such period; and
(iv) For thirty-six (36) months following the Date of Termination (such period, the "Other Benefits Continuation Period"), the Company shall continue to provide the Executive and his family welfare with the benefits and perquisites (includingsuch benefits and perquisites being hereinafter referred to as the "Other Benefits") (or, without limitationin the event that the provision of such benefits and perquisites is not possible, medicalthe cash value of such benefits and perquisites), dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as equal to those which would have been provided under to them if the most favorable welfare plans of Executive's employment had not been terminated, in accordance with the Company terms generally applicable with respect to the Executive provision of such benefits and his family perquisites during either the ninety (i90) 90-day period immediately preceding the Change Effective Date, or, if more favorable to the Executive, in Control, or effect generally from time to time thereafter during such Other Benefits Continuation Period with respect to other peer executives of the Company and its affiliated companies and their families. The Other Benefits shall include (iibut shall not be limited to) the 90-day period immediately preceding following: employer contributions to the Executive’s Termination DateAMCORE Financial Security Plan, AMCORE Top Hat Plan, AMCORE Cash Profit Plan or any other defined contribution retirement plan, club membership fees, financial planning allowance and car allowance. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare Such benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage paid or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay made available to the Executive in cash the Executive’s unpaid salary through manner and at such time or times as they would otherwise have been paid or made available absent the Termination Date, plus any accrued paid time off, in each case to occurrence of an event which triggers the extent not previously paidapplication of this Section 5(a)(iv).
Appears in 1 contract
Samples: Transitional Compensation Agreement (Amcore Financial Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for (a) Prior to a Change of Control: Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other ; Other than for Cause, --------------------------------------------------------------- Death or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, the Company terminates shall ------------------- terminate the Executive’s employment for Cause or if the Executive terminates 's employment other than for Good Reason (including death Cause or disability), this Agreement Disability or the Executive shall terminate without further obligation by employment for Good Reason:
(i) the Company, other than the obligation to Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive’s unpaid salary 's Annual Base Salary through the Date of Termination Date, plus to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued paid time offinterest or earnings thereon) and any accrued vacation pay, in each case to the extent not previously paidtheretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three and (2) the sum of (x) the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(ii) paid or payable in respect of the most recently completed fiscal year of the Company; and, provided further, that such amount shall be reduced by the present value (determined as provided in Section 280G(d)(4) of the Internal Revenue Code of 1986, as amended (the "Code")) of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. a separate lump sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Employees Retirement Plan for Pogo Producing Company (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Applicable Date) of the benefit payable under the Retirement Plan and any supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") 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 the 3-year period following termination of employment, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Applicable Date, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Applicable Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount");
(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 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 as in effect and applicable generally to other executives and their families during the 90- day period immediately preceding the Applicable Date, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(iii) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during the 90- day period immediately preceding the Applicable Date (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for (a) Good Reason; Other Than for Cause, Death or Disability. If If, during the Employment Period, the Company shall terminate the ExecutiveEmployee’s employment other than for Cause, Disability or death or if the Executive Employee shall terminate his employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The Company shall, within thirty business days of the Termination Date, shall pay to the Executive Employee in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
(iA) to the extent not previously theretofore paid, the salary and any accrued paid time off Employee’s Annual Base Salary through the date Date of the Change in Control;Termination; and
(iiB) an amount equal to the product of (ix) the annual cash bonus (“Annual Bonus”) paid to the Employee for the calendar last full fiscal year immediately preceding (if any) ending during the calendar Employment Period or, if higher, the Annual Bonus paid to the Employee for the last fiscal year in which prior to the date that a Change in of Control occurs multiplied by occurred (iias applicable, the “Recent Bonus”) and (y) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occurs, Date of Termination and the denominator of which is 365;; provided, however, the Company shall be obligated to make the foregoing payment ONLY if on the Date of Termination the Employee has satisfied all of the eligibility requirements for the award of a bonus under the Company’s then current Incentive Bonus Plan (other than any requirement that the participant be employed by the Company on the date of such award, grant or other determination) ; and
(iiiC) if the Employee has deferred any compensation, all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued earnings interest thereon, ) and not yet paid by the Company;
, and any accrued vacation pay not yet paid by the Company (iv) an amount equal to three (3) times the sum of the Executive’s amounts in clauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(D) the product of (x) 1.00 and (y) the Annual Base Salary and on the Annual BonusDate of Termination; and
(E) all amounts in Employee’s retirement plan accounts which will become fully vested upon the Date of Termination notwithstanding the existing vesting schedule; provided, however, that Employer’s 401k plan shall not be considered a retirement plan for this purpose.
(bii) The Executive For one year from the Date of Termination (the “Benefit Continuation Period”), the Company shall become fully vested continue to provide medical and dental insurance and life insurance benefits to the Employee and/or the Employee’s family at the same level (and at the same cost to the Employee) as were being provided to the Employee on the day prior to the day on which the Notice of Termination was given. For purposes hereof, the Employee shall be considered to have remained employed until the end of the Benefit Continuation Period and to have retired on the last day of such period. If the terms of any benefit plan referred to in any this section do not permit continued participation by the Employee, then the Company will arrange for other coverage, providing substantially similar benefits, at the same cost to the Employee; and
(iii) All options and all stock incentive similar awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive Employee by the Company shall lapse immediatelyimmediately vest notwithstanding any vesting schedule in any option or award agreement.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other (a) Good Reason; Other than for Cause or by the Executive for Good ReasonDeath or Disability. If -------------------------------------------------------- If, during the Employment Period, (x) the Company shall terminate the Executive’s 's employment other than for Cause, Cause or if death or Disability or (y) the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shallshall pay or provide to or in respect of the Executive the following amounts and benefits:
A. in a lump sum in cash, within thirty business 10 days after the Date of the Termination DateTermination, pay to the Executive a single lump sum cash payment an amount equal to the sum of (1) the following amounts:
Executive's Annual Base Salary through the Date of Termination and (i2) any compensation for unused vacation time for which the Executive is eligible in accordance with the most favorable plans, policies, programs and practices of the Company, in each case to the extent not previously paid, theretofore paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Controlclauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligation");
(ii) B. in a lump sum in cash, within 10 days after the Date of Termination, an amount equal to the product of (ix) the annual bonus Annual Bonus paid or awarded by the Company to or for the calendar benefit of the Executive in respect of the fiscal year immediately preceding the calendar year in which the Change in Control occurs multiplied by Date of Termination and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occurs, Date of Termination and the denominator of which is 365;
(iii) all amounts previously deferred by C. in a lump sum in cash, undiscounted, within 10 days after the Executive under any nonqualified deferred compensation plan sponsored by the CompanyDate of Termination, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum amount of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted that would have been paid to the Executive pursuant to this Agreement for the period (the "Remaining Employment Period") beginning on the Date of Termination and ending on the date that is three years after the Date of Termination (the "Final Expiration Date") if the Executive's employment had not been terminated plus the Annual Bonus that would have been paid or awarded to or for the benefit of the Executive during the Remaining Employment Period if the Executive's employment had not been terminated and if the amount of the Annual Bonus for each fiscal year or portion thereof during such period were equal to the average of the two highest Annual Bonuses paid or awarded to or for the benefit of the Executive in respect of the three full fiscal years preceding the Date of Termination;
D. in a lump sum in cash, undiscounted, within 30 days after the Date of Termination, an amount equal to the economic equivalent of the benefits the Executive (and his dependents or beneficiaries) would have received or become entitled to under any plan or otherwise which have Section 2(b)(iii) of this Agreement for the Remaining Employment Period if the Executive's employment had not become exercisable been terminated;
E. effective as of the date Date of Termination, (1) if the Executive has not received a grant of stock options in respect of any calendar year during the Employment Period or the Remaining Employment Period, for each such calendar year, a stock option grant covering the same number of shares and on the same terms and conditions as the average of the Change prior stock option grants to the Executive for the three full fiscal years preceding the Date of Termination (excluding for this purpose the Special Grants), prorated in Control the case of any period of less than a full fiscal year, and all (2) if the Executive has not received a grant of restricted stock options and/or restricted stock units and/or other similar equity-based awards in respect of any calendar year during the Employment Period or the Remaining Employment Period, for each such calendar year, a grant covering the same number of shares and on the same terms and conditions as the average of the prior grants of such awards to the Executive for the three full fiscal years preceding the Date of Termination (including options vested excluding for this purpose the Special Grants), prorated in the case of any period of less than a full fiscal year; provided that any awards required by (1) or (2) shall be prorated based on the length of the Remaining Employment Period as compared to the customary terms of such awards for purposes of a recipient becoming entitled to full vesting in such award; and
F. effective as of the Change in ControlDate of Termination, (1) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as immediate vesting and exercisability of, and termination of a Change in Control are applicable to any restrictions on sale or transfer (other than any such restriction arising by operation of law) with respect to, each and every stock option, deferred restricted stock unitaward, restricted stock or restricted share units awarded to unit award and other equity-based award and performance award that is outstanding as of the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination Date of employment, the Company shall arrange to provide the Executive and his family welfare benefits Termination (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans each of the Company applicable with respect foregoing granted pursuant to Section 4(a)(i)(E)) (each, a "Compensatory Award"), (2) the extension of the term during which each and every Compensatory Award may be exercised by the Executive and his family during either until the earlier of (ix) 90-day period immediately preceding the Change in Control, first anniversary of the Date of Termination or (iiy) the 90-day period immediately preceding date upon which the Executive’s Termination Date. Notwithstanding the foregoing, right to exercise any Compensatory Award would have expired if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required had continued to be provided employed by the Company hereunder shall be reduced by under the amount terms of coverage provided by such other employer’s welfare benefit plans.
this Agreement until the Final Expiration Date and (d3) The Executive’s rights under this Section shall be in addition to and not in lieu if a Change of any post-termination continuation coverage Control precedes or conversion rights occurs within one year following the Executive may have pursuant to applicable lawDate of Termination, including, without limitation, continuation coverage required by Section 4980B at the sole election of the Code Executive, in exchange for any or all Compensatory Awards that are either denominated in or payable in Common Stock (“COBRA Continuation Coverage”as defined in Section 9 hereof), an amount in cash equal to the excess of (x) the Highest Price Per Share over (y) the exercise or purchase price, if any, of such Compensatory Awards. If the Executive elects to receive COBRA Continuation CoverageAs used herein, the Company term "Highest Price Per Share" shall pay all mean the highest price per share that can be determined to have been paid or agreed to be paid for any share of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged Common Stock by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
Covered Person (gas defined below) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, at any time during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.six-month period immediately preceding
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If (a) Prior to or More than 24 Months after a Change in Control: Termination by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the ; Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occursOther Than for Poor Performance, and the denominator Cause or Disability; Expiration of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted Employment Period. If, prior to the Executive under any plan or otherwise which have not become exercisable as of the date of the more than 24 months after a Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following during the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the 's Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates 's employment other than for Poor Performance, Cause or Disability, or Executive terminates his employment for Good Reason (including death within a period of 90 days after the occurrence of the event giving rise to Good Reason, or disability), this Agreement shall terminate without further obligation by upon the Company, other than the obligation to pay to the Executive in cash expiration of the Executive’s unpaid salary Employment Period, as described in Section 3, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto and the period for revoking such Release (the "Release") has expired before the 30th day after the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment) the sum of (A) Executive's Base Salary through the Date of Termination Date, plus any accrued paid time off, in each case to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the "Accrued Obligations"); and
(ii) for the longer of (A) 18 months from the Date of Termination or (B) the remaining term of Executive's Employment Period (the "Normal Severance Period"), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly or other installments (not less frequently than monthly) as are customary under the Company's payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however, that the Company's obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company's obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) on the 30th day after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum in cash an amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive's bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously paidelected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards ("Restricted Stock") held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive's options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards ("Options") that would have become vested (by lapse of time) within the 24-month period following the later of (a) the end of the initial term of this agreement or (b) the termination, date had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive's vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, (B) the 90th day following the end of the Normal Severance Period or (C) 10 years from the date of grant of the options; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits pursuant to the plans, policies, practices and programs under which such Other Benefits are provided.
(b) Prior to or More than 24 Months after a Change in Control: Termination by the Company for Poor Performance. If, prior to or more than 24 months after the occurrence of a Change in Control, the Company terminates Executive's employment for Poor Performance, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vi) below, only if Executive executes the Release and the period for revoking such Release expires before the 30th day after the Date of Termination):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment); and
(ii) for a period of 12 months after the Date of Termination (the "Poor Performance Severance Period"), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly installments or other installments (not less frequently than monthly) as are customary under the Company's payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however that the Company's obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company's obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) all grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(v) subject to the specific approval of the Compensation Committee, all of Executive's Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive's vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(v) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period or (C) 10 years from the date of grant of the options; and
(vii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits pursuant to the plans, policies, practices and programs under which such Other Benefits are provided.
(c) After or in Connection with a Change in Control: Termination by Executive for Good Reason;
Appears in 1 contract
Samples: Employment Agreement (American Safety Insurance Holdings LTD)
Obligations of the Company Upon Termination. 4.1 5.1 If by the Company other than for Cause or by the Executive for Good ReasonReason or by the Company Other Than for Cause or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for CauseCause or Disability, or if the Executive shall terminate employment for Good Reason, the Company’s 's obligations to the Executive shall be as follows:
(a) The Company shall, within thirty Within five business days of such termination of employment, the Termination Date, Company shall pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary Annual Base Salary and any accrued paid time off through the date of the Change in ControlTermination Date;
(ii) an amount equal to the product of (i1) the annual bonus Annual Incentive (as defined in Section 3.2(b)) for the calendar year immediately preceding the calendar year Performance Period in which the Change in Control Termination Date occurs multiplied by (ii2) a fraction, the numerator of which is the number of days employed by the Company actually worked during the calendar year in which the Change in Control occurssuch Performance Period, and the denominator of which is 365;; or, if greater, the amount of any Annual Incentive paid or payable to the Executive with respect to the Performance Period for the year in which the Termination Date occurs; and,
(iii) all amounts previously deferred by or accrued to the benefit of the Executive under any nonqualified deferred compensation plan sponsored by the Company, excluding the Supplemental Executive Retirement and Deferred Compensation Plan (the "SERP"), together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Company shall pay the Executive an amount equal to the product of (1) three multiplied by (2) the sum of the Executive's Annual Base Salary plus the Severance Incentive. This amount shall be paid to the Executive in the following manner:
(i) no later than the tenth day of each month, for the first twenty four months following the Executive's Termination Date, the Company shall pay to the Executive an amount equal to the monthly pro-rata sum of the Executive's Annual Base Salary plus the Severance Incentive.
(ii) at the expiration of the twenty four month period, and no later than the tenth day of the twenty fifth month, the Company shall pay Executive, in a lump sum, an amount equal to the sum of the Executive's Annual Base Salary plus the Severance Incentive.
(c) Each of the Executive's stock options granted under the Long Term Incentive Plan (the "LTIP"), any successor plan or otherwise that is exercisable on the Termination Date shall remain exercisable until the applicable option expiration date.
(d) On the Termination Date (1) the Executive shall become fully vested in, and may thereupon and until the applicable expiration date of such stock incentive awards exercise in whole or in part, any and all stock incentive awards granted to the Executive under the LTIP, any successor plan or otherwise which have not become exercisable as of the date of Termination Date, and (2) the Change Executive shall become fully vested at the target level in Control and all stock options (including options vested any cash incentive awards granted under the LTIP, a successor plan or otherwise which have not, as of the Change in ControlTermination Date, become fully vested.
(e) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control the Termination Date are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company pursuant to the LTIP, a successor plan or otherwise shall lapse immediately.
(cf) Except During the Severance Period (or until such later date as provided in subsections (d) and (eany Welfare Plan of the Company may specify), for a one year period following the Executive’s termination of employment, the Company shall arrange continue to provide to the Executive and his the Executive's family welfare benefits (including, without limitation, medical, prescription, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans Welfare Plans of the Company applicable (i) with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.the
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for (a) For Cause; Without Good Reason; Other Than for Death, Disability or Upon a Change of Control. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for Cause, Cause or if the Executive shall terminate his employment for without Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum termination of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested 's employment in any and all stock incentive awards granted case is not due to the Executive under any plan death or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of Disability, without Cause, for Good Reason or upon a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references shall forfeit all rights to the Company contained in this Agreement referring Incentive Bonus otherwise due to benefits him or to which the Executive he may be entitled shall be read to refer to such subsidiary.
(h) entitled. If the Executive’s employment with the Company as a common law employee termination is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates his employment without Good Reason, all unvested stock options held by the Executive shall lapse and expire and any remaining vested but unexercised stock options shall remain exercisable for a period of ninety (90) days from the Date of Termination and shall thereafter lapse and expire if not exercised. In each of these circumstances, the Company shall have no further payment obligations to the Executive or his legal representatives, other than for Good Reason the payment of: (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive i) (A) in cash within ten (10) days after the Date of Termination the sum of (1) the Executive’s unpaid salary 's Annual Base Salary through the Date of Termination Date, plus any accrued paid time off, in each case to the extent not theretofore paid, (2) any compensation previously paiddeferred by the Executive (together with any accrued interest or earnings thereon) and (3) any accrued vacation pay, and (B) in cash within ten (10) days after the Date of Termination any earned but unpaid Incentive Bonus payable in respect of any completed fiscal year that has not been paid in full for that completed year as of the Date of Termination (collectively, the "Accrued Obligations"); and (ii) any amount arising from the Executive's participation in, or benefits under, any Investment Plans (the "Accrued Investments"), which amounts shall be payable in accordance with the terms and conditions of such Investment Plans.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shallOther Than For Cause, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan Death or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in ControlDisability, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for For Good Reason. If, during the Employment Period, the Company terminates the Executive’s 's employment for Cause any reason other than Cause, death or if Disability, or the Executive terminates employment for Good Reason, the Company shall continue to provide the Executive with the compensation and benefits set forth in paragraphs (a), (b) and (c) of Section 3 and the continuing protection of Section 5(d) as if he had remained employed by the Company through the end of the Employment Period and then retired. The Incentive Compensation for such period shall be equal to the maximum Incentive Compensation that the Executive would have been eligible to earn for such period. In lieu of stock options, restricted stock and other stock-based awards, the Executive shall be paid cash equal to the fair market value (without regard to any restrictions) of the stock options, restricted stock and other stock-based awards that would otherwise have been granted. To the extent that any benefits described in Section 3(c) cannot be provided pursuant to the plan or program provided by the Company for its executives, the Company shall provide such benefits outside such plan or program at no additional cost (including without limitation tax cost) to the Executive and his family. Finally, during any period when the Executive is eligible to receive medical, prescription or dental benefits under another employer-provided plan, the benefits provided by the Company under this Section 5(a) may be made secondary to those provided under such other plan. In addition to the foregoing, any restricted stock outstanding on the Date of Termination and all options outstanding on the Date of Termination shall be fully vested and exercisable and shall remain in effect and exercisable until the end of the Employment Period (absent the prior death of the Executive) as if the Executive remained employed until then and shall thereafter remain exercisable in accordance with the applicable terms respecting retired employees. The payments and benefits provided pursuant to this Section 5(a) are intended as liquidated damages for a termination of the Executive's employment by the Company other than for Good Reason (including death Cause or disability), this Agreement shall terminate without further obligation Disability or for the actions of the Company leading to a termination of the Executive's employment by the CompanyExecutive for Good Reason, other than and shall be the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidsole and exclusive remedy therefor.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by (a) Termination Due to Death, Disability, By the Executive for Good ReasonReason or By the Company Other than for Cause. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause reason of his death or Disability, or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to :
(i) the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in a lump sum in cash the following amounts: the sum of (1) the Executive’s unpaid base salary as then in effect through the Date of Termination Dateto the extent not theretofore paid, plus (2) any accrued unused paid time off (vacation and sick time as recorded in the Company’s payroll system as of the Date of Termination consistent with prior notifications or confirmations by the Company of such unused paid time off, which amount would continue to increase and accrue based on the Executive’s continued employment), paid out at the per-business-day base salary rate then in effect with respect to the Executive, (3) any additional vested benefits in accordance with the applicable terms of applicable Company arrangements, including the deferred compensation payment contemplated by Section 5(a) hereof, and (4) any unreimbursed expenses (the sum of the amounts described in clauses (1), (2), (3) and (4) shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) subject, in each case case, to Sections 9 and 10 hereof and the Executive’s continued compliance with the covenants and obligations set forth in the Confidential Information, Inventions and Noncompete Agreement, dated as of March 26, 2010 (the “Noncompete Agreement”), the Company shall provide the Executive with:
A. payment equal to the extent not previously paidproduct of (x) 1.00, multiplied by (y) the Executive’s annual base salary then in effect;
B. subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), a lump sum cash payment in an amount equal to the employer portion of the costs of continued health benefits for the Executive and his covered dependents (based on the level of coverage in effect as of the Date of Termination (the “Separation Period”) in effect at the Date of Termination) (the “Health Benefits Payment”) for the twelve (12) month period following the Date of Termination; provided, however, that if the Company’s provision of the Health Benefits Payment to the Executive under this Section 3(a)(ii)(B) would violate the nondiscrimination rules applicable to health plans or self-insured plans under Section 105(h) of the Code, or result in the imposition of penalties under the Patient Protection and Affordable Care Act of 2010 and the related regulations and guidance promulgated thereunder (the “PPACA”), the parties agree to reform this Section 3(a)(ii)(B) in a manner as is necessary to comply with the PPACA and the Code; provided, further, that nothing herein provided shall be construed to extend the period of time over which COBRA continuation coverage otherwise may be provided to the Executive and/or his dependents in accordance with applicable law; and
C. for purposes of any equity incentive awards granted to the Executive that remain outstanding on the Date of Termination, and notwithstanding anything to the contrary in the applicable award agreement or plan (or any predecessor or successor equity compensation plan), or elsewhere, such equity incentive awards that would otherwise be scheduled to vest during the Separation Period shall continue to vest during such period in accordance with the vesting schedule in effect prior to the Date of Termination. In addition (i) any options that were vested immediately prior to the Date of Termination shall be exercisable for (x) ninety (90) days following the Date of Termination, or (y) twelve (12) months following the date of termination if the Executive is “Retirement”-eligible (as defined in the applicable award agreement governing the Options) as of the Date of Termination, and (ii) any options that vest during the Separation Period pursuant to the foregoing sentence shall be exercisable for ninety (90) days following the conclusion of the Separation Period.
Appears in 1 contract
Samples: Separation and Deferred Compensation Agreement (Immucell Corp /De/)
Obligations of the Company Upon Termination. 4.1 If (a) Prior to a Change in Control: Termination by Employee for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control, the Company shall terminate Employee’s employment other than for Poor Performance, Cause or by the Executive Disability, or Employee shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason. If , then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Employee executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company shall pay to Employee in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Employee’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Employee becomes employed with a subsequent employer, but in no event to exceed 18 months from the Date of Termination (the “Normal Severance Period”), the Company will continue to pay Employee an amount equal to her monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Employment Normal Severance Period, the Company shall terminate continue benefits to Employee and/or Employee’s family at least equal to those which would have been provided to them in accordance with the ExecutiveWelfare Plans described in Section 5(c) of this Agreement if Employee’s employment other than for Causehad not been terminated; provided, or if the Executive shall terminate employment for Good Reason, however that the Company’s obligations obligation to provide such benefits shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the Executive shall be as follows:satisfaction of the Board within 10 days of notice of such violation; and
(aiv) The Company shallnot later than 30 days after the Date of Termination, within thirty business days Employee will be paid a bonus for the year in which the Date of the Termination Date, pay to the Executive a single lump sum cash payment occurs in an amount equal to the sum greater of (1) 50% of her Bonus Opportunity (as defined in Section 5(b)(i)) for such year, or (2) 100% of her Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to her year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Employee’s bonus plan for such year; and
(v) all grants of restricted stock of the following amounts:Company (“Restricted Stock”) held by Employee as of the Date of Termination will become immediately vested as of the Date of Termination; and
(ivi) all of Employee’s options to acquire Common Stock of the Company (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Employee remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Employee’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not previously paid, the salary and any accrued theretofore paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentprovided, the Company shall arrange timely pay or provide to provide the Executive and his family welfare Employee any other amounts or benefits (includingrequired to be paid or provided or which Employee is eligible to receive under any plan, without limitationprogram, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans policy or practice or contract or agreement of the Company applicable with respect to the Executive (such other amounts and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by hereinafter referred to as the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageOther Benefits”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by The following provisions describe the obligations of the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive under this Agreement upon termination of his employment. However, except as explicitly provided in this Agreement, nothing in this Agreement shall be as follows:limit or otherwise adversely affect any rights which the Executive may have under applicable law, under any other agreement with the Company, or under any compensation, pension, thrift or other benefit plan, program, policy or practice of the Company.
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occursfor Cause, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in ControlGood Reason, or (ii) the 90-day period immediately preceding the Executive’s Termination Datedue to Death or Disability. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive without Good Reason, or due to the Executive’s death or Disability, he shall be entitled to his Base Salary, accrued but unpaid bonus for any year prior to the year of termination, and accrued vacation through his Date of Termination and all other than vested benefits under the terms of the Company’s employee benefit plans, subject to the terms of such plans.
(b) Termination by the Company without Cause or by the Executive for Good ReasonReason or by Reason of Merger or Change of Control. IfIn addition to the items in Section 11(a), during the Employment Period, the Company terminates if the Executive’s employment for is terminated by the Company without Cause or by the Executive for Good Reason or because of merger or change of control (in a situation where cause does not also exist), he shall be entitled, upon execution of a release of claims (exclusive of claims for indemnification under Section 13 or under Company benefit plans) in a form reasonably acceptable to the Company and without subsequent revocation within the period described in such release, to severance payments, in lieu of any other severance benefits, equal to one (1) times the Executive’s Base Salary, as in effect on the Date of Termination, plus (i) one (1) times Executive’s targeted annual incentive award in effect for the calendar year in which the Date of Termination occurs (or the targeted annual incentive award for the prior year if such has not then been determined), (ii) the annual incentive award for the calendar year in which the Date of Termination occurs and prorated for the portion of the calendar year in which the Executive was employed, (iii) the unpaid long-term incentive award for any Performance Period (as such term is defined under the Company’s Long-Term Incentive Plan Document (the “LTIP”) ending prior to the year in which the Date of Termination occurs, and (iv) a pro-rated long-term incentive award for any long-term incentive awards for which the Performance Period has not ended as of the Date of Termination, with such pro-rated award to be calculated in accordance with the terms of the LTIP as if the termination was due to death, disability or normal retirement. The Executive also shall be entitled to any benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), provided that the Company will continue paying its portion of the medical and/or dental insurance premiums for the one year period following the Date of Termination. The annual and long-term incentive awards provided under this Section 11(b), (ii) and (iv) will be paid based at target for individual/team goals and based on the calendar year actual results for Company-wide goals, and at the regular time that such payments are made to all employees in the plans, and shall be payable notwithstanding any terms of such plans to the contrary which otherwise require continued employment to receive an award. The Base Salary amount and the amounts provided for under this Section 11(b), (i) and (iii) shall be paid in a lump sum within ten (10) days of the date the release becomes effective. Payments under this Section 11(b) shall be paid or provided only at the time of a termination of the Executive’s employment that constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) and the regulations and guidance promulgated thereunder. Further, if the Executive terminates employment other than is a “specified employee” as such term is defined under Section 409A of the Code and the regulations and guidance promulgated thereunder, any payments described under this Section 11(b) shall be delayed for Good Reason a period of six (including death 6) months following the Executive’s separation from service to the extent and up to an amount necessary to ensure such payments are not subject to the penalties and interest under Section 409A of the Code. If the payments are delayed as a result of the previous sentence, then on the first day following the end of such six (6) month period (or disabilitysuch earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution), this Agreement the Company shall terminate without further obligation by pay the Company, other than Executive a lump sum amount equal to the obligation to pay cumulative amount that would have otherwise been payable to the Executive in cash during such period, plus interest credited from the date of the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case separation from service to the extent not previously paiddate of payment at the “applicable federal rate” provided for in Section 7872(f)(2)(A) of the Code in effect as of the date of such separation from service.
Appears in 1 contract
Samples: Employment Agreement (Federal Home Loan Bank of Des Moines)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than for Cause or by the Executive for Good Reason. If during the Employment PeriodCompany, the Company shall terminate the Executive’s employment other than Other Than for Cause, Death or if Disability, or By the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment 's employment, other than for Cause or if Disability or by reason of the Executive's death, or the Executive terminates employment for Good Reason, the Company shall pay the Executive in a single lump sum an amount equal to his Annual Base Salary under Section 3(a) hereof for the greater of (i) two years or (ii) the balance of the then Employment Period as well as the Annual Bonus for the same period determined at the target rate under the Company's then annual incentive plan. Fifty percent of such amounts shall be consideration for the Executive's undertaking not to breach the terms of the covenants contained in Section 8 below. The Company shall also pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the Executive's accrued but unpaid cash compensation (the "Accrued Obligations"), which shall include but not be limited to, (1) any portion of the Executive's Annual Base Salary through the Date of Termination that has not yet been paid and an amount representing the Annual Bonus for the year of termination based on target, and multiplying that amount by 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 (the "Annual Bonus Amount"), (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) that has not yet been paid; (3) any accrued but unpaid vacation pay, and (4) similar unpaid items that have accrued or to which the Executive has become entitled as of the Date of Termination, including declared but unpaid bonuses and unreimbursed employee business expenses, and the Company shall also pay all brokerage commissions, transfer taxes and closing costs incurred in selling the Executive's then current residence if the Executive is unable to sell such property within 90 days of placing it on the market, for its appraised fair market value as determined in accordance with the Company's normal policy for senior level executives; provided, however, that in no event shall such purchase be at a price less than the Executive's documented cost for such residence including all renovations and improvements; and provided, further, that the Company's obligation to make any payments under this Section 5(a) to the extent any such payment shall not have accrued as of the day before the Date of Termination shall also be conditioned upon the Executive's execution, and non-revocation, of a written release, substantially in the form attached hereto as Annex 1 (the "Release"), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive's employment by the Company (other than for Good Reason (including death any entitlements under the terms of this Agreement or disabilityunder any other plans or programs of the Company in which the Executive participated and under which the Executive has accrued or become entitled to a benefit), or the termination thereof. Notwithstanding the foregoing, in the event payment is due to the Executive under this Agreement Section following a Change of Control, then conditioned upon the Executive's execution, and non-revocation, of the Release and the Executive not breaching the terms of the covenants contained in Section 8(a) and (b) below, the Executive, in lieu of the amounts specified in the first sentence of the prior paragraph other than the residence expenditures, shall terminate without further obligation receive in a lump sum in cash within 30 days after the Date of Termination equal to 2.99 multiplied by the sum of the Executive's Annual Base Salary and Annual Bonus for the year in which the Change of Control occurs or the immediately preceding year, whichever produces the higher sum. Fifty percent of such amount shall be consideration for the Executive's undertaking not to breach the terms of the covenants contained in Sections 8(a) and (b) below. In addition, the Executive shall also be entitled to, in the case of compensation previously deferred by the Executive, a lump sum equal to all amounts previously deferred (together with any accrued interest thereon) and not yet paid by the Company, other than any accrued vacation pay not yet paid by the obligation to pay Company. For the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive Employee and/or the Employee's family at least equal to those which would have been provided to them in cash accordance with the Executive’s unpaid salary through plans, programs, practices and policies described in Section 3 of this Agreement if the Termination DateEmployee's employment had not been terminated, plus any accrued paid time offincluding health insurance and life insurance, in each case accordance with the most favorable plans, practices, programs or policies of the Company and its subsidiaries during the 90-day period immediately preceding the date on which the Change of Control occurs or, if more favorable to the extent not previously paidEmployee, as in effect at any time thereafter with respect to other key employees and their families and for purposes of eligibility for retiree benefits pursuant to such plans, practices, programs and policies, the Employee shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period.
Appears in 1 contract
Samples: Employment Agreement (Park Place Entertainment Corp)
Obligations of the Company Upon Termination. 4.1 If (a) Prior to a Change in Control: Termination by the Company other than for Cause or by the Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If during the Employment PeriodIf, prior to a Change in Control, the Company shall terminate the Executive’s employment other than for CausePoor Performance, Cause or Disability, or if the Executive shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, the Company’s obligations then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive shall be as follows:executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(ai) The the Company shallshall pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, within thirty business days of the Termination Date, and (B) any accrued vacation pay to the Executive a single lump sum cash payment equal to extent not theretofore paid (the sum of the following amounts:amounts described in clauses (A) and (B) shall be hereinafter referred to as the “Accrued Obligations”); and
(iii) for the longer of six months or until Executive becomes employed with a subsequent employer, earns an income from becoming an owner, partner, or an independent contractor of any other entity, or in the event Employee earns an income from becoming a consultant, starting a business, or otherwise, but in no event to exceed 18 months from the Date of Termination (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments shall cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, the Company shall continue benefits to Executive and/or Executive’s family at least equal to those which would have been provided to them in accordance with the Welfare Plans described in Section 5(c) of this Agreement if Executive’s employment had not been terminated; provided, however that the Company’s obligation to provide such benefits shall cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in an amount equal to the greater of (1) 50% of his Bonus Opportunity (as defined in Section 5(b)(i)) for such year, or (2) 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; and
(v) all grants of restricted stock of the Company (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not previously paid, the salary and any accrued theretofore paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentprovided, the Company shall arrange timely pay or provide to provide the Executive and his family welfare any other amounts or benefits (includingrequired to be paid or provided or which Executive is eligible to receive under any plan, without limitationprogram, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans policy or practice or contract or agreement of the Company applicable with respect to the Executive (such other amounts and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by hereinafter referred to as the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageOther Benefits”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death or by Disability; By the Executive for Good Reason; Non-Renewal. If Subject to Section 5 of this Agreement, if, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, death or Disability, or if the Executive shall terminate employment for resigns with Good Reason, or if the Executive’s employment ceases at the end of the Initial Employment Period or an Extension Period following either the Executive or the Company giving the other a notice of nonrenewal in accordance with Section 1(b), the Executive will be entitled to the following benefits; provided that the benefits described in Sections 4(a)(ii), (iii), (iv), (v) and (vii) shall only be paid or provided if the Executive executes a waiver and release prepared by the Company’s obligations , which releases the Company and its affiliates, directors, officers and other customary persons from any claim or liability arising out of or related to the Executive’s employment with or termination of employment from the Company or any of its affiliates (except for amounts to which the Executive shall be as follows:
is legally entitled pursuant to employee benefit plans, the Executive’s right to enforce this Agreement and rights to insurance coverage or indemnification) (a) The Company shallthe “Release”), which Release is not revoked within thirty business days of the Termination Datetime period provided therein, pay and the executed Release is delivered to the Executive a single lump sum cash payment equal to Company within forty-five (45) days following the sum Date of the following amountsTermination:
(i) a lump sum payment within sixty (60) days following the Date of Termination equal to the aggregate of the following amounts: (A) the Executive’s Annual Base Salary and vacation pay accrued through the Date of Termination; (B) any Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election); and (C) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination and were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (A), (B), and (C), to the extent not previously paid, paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Controlclauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”);
(ii) an amount a payment equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the target Annual Bonus, in each case determined as the greater of that in effect immediately prior to the Date of Termination or that in effect immediately prior to the Effective Date, payable in a lump sum in cash on the sixtieth (60th) day following the Date of Termination;
(iii) An Annual Bonus for the Fiscal Year in which the Date of Termination occurs, equal to (A) the amount which the Executive would have earned had he remained employed through the payment date of such Annual Bonus, based on actual achievement of the applicable performance metrics for the applicable Fiscal year, and (B) such amount then prorated based on the number of days Executive was employed during the Fiscal Year in the which the Date of Termination occurs, paid at the same time as would have been the case had such termination not occurred, but in no event later than March 15 of the fiscal year following the fiscal year in which the Covered Termination occurs (the “Pro-Rata Bonus”).
(biv) The Executive shall become a fully vested and non-forfeitable interest in the Executive’s account balance in The Xxxxxxx & Xxxxxx Company Defined Contribution Restoration Plan and any successor thereto maintained by the Company, The Xxxxxxx & Xxxxxx Company Supplemental Executive Retirement Plan and any successor thereto maintained by the Company, and any other supplemental executive retirement plan maintained by B&W or the Company, and payable in accordance with the terms thereof;
(v) notwithstanding anything contained in the applicable equity plan or any individual grant agreements issued thereunder applicable to the Executive, but in all stock incentive cases subject to any adjustments which may be made to equity compensation awards generally as of the Effective Date as a result of the Restructuring Transaction, upon the Date of Termination:
(A) all unvested equity compensation awards granted by B&W to the Executive under on or prior to December 31, 2014 that the Executive holds as of immediately prior to the Date of Termination (“Pre-2015 Equity Awards”), shall vest in full, and, in the case of restricted stock or restricted stock units shall be settled within sixty (60) days after the Date of Termination; provided that (i) any plan or otherwise such B&W equity compensation award which have is performance-based will be settled only with respect to the number of shares earned based on achievement of actual performance through the applicable performance period, which settlement will occur at the same time as if the termination of employment had not become exercisable occurred, (ii) any such B&W equity compensation award which is subject to Section 409A of the Code will be paid on a date earlier than is provided in the applicable award agreement to the extent necessary to avoid the imposition of tax penalties pursuant to Code Section 409A and (iii) for the avoidance of doubt, any Pre-2015 Equity Award that is a vested stock option that Executive holds as of the date of the Change in Control and all stock options his Covered Termination (including options vested for this purpose any such stock option which vests as a result of the Change in Controlthis provision) shall remain exercisable until through the applicable option expiration date. All forfeiture conditions of the original term of such stock option; and
(B) other than as described in the immediately following clause (C), all unvested equity compensation awards granted by B&W or the Company to the Executive on or after January 1, 2015 that the Executive holds as of immediately prior to the Date of Termination shall vest on a Change pro-rata basis, with the portion of such equity awards that shall become vested hereunder equal to the product of (x) a fraction, the numerator of which is equal to the number of days in Control are the performance or service period applicable to any such award during which the Executive was employed by the Company (including B&W as its predecessor entity, as applicable), and the denominator of which is the total number of days in such performance or service period and (y) the total number of shares of common stock option, deferred stock unit, subject to such performance- or service-vesting award to which the Executive would have become entitled to under such award; and in the case of such equity awards which are restricted stock or restricted share stock units awarded shall be settled within sixty (60) days after the Date of Termination; provided that (i) any such B&W equity compensation award which is performance-based will be settled only with respect to the pro-rata number of shares earned based on achievement of actual performance through the applicable performance period, which settlement will occur at the same time as if the termination of employment had not occurred, and (ii) any such B&W equity compensation award which is subject to Section 409A of the Code will be paid on a date earlier than is provided in the applicable award agreement to the extent necessary to avoid the imposition of tax penalties pursuant to Code Section 409A; and
(C) notwithstanding anything set forth above or in the Restructuring Transaction Retention Agreement by and among the Parties, dated as of November 5, 2014 (the “Retention Agreement”), the “Retention Incentive Grant” (as defined in the Retention Agreement), to the extent not vested on the Date of Termination, shall vest in full and be settled within sixty (60) days after the Date of Termination; and
(D) any equity compensation award issued by the Company to the Executive in respect of a B&W equity compensation award held by the Company Executive immediately prior to the completion of the Restructuring Transaction and as a result of the Restructuring Transaction, shall lapse immediatelybecome vested to the same extent and in the same manner as the corresponding B&W equity compensation award pursuant to each of the immediately preceding clauses (A), (B) and (C), as applicable; and
(E) the benefits described in the immediately preceding clauses (A), (B), (C) and (D) shall be hereinafter referred to as the “Equity Acceleration Benefits”.
(cvi) Except as provided in subsections (d) and (e), for a one year period following to the Executive’s termination of employmentextent not theretofore paid or provided, the Company shall arrange timely pay or provide to provide 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 through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
(vii) a payment equal to three (3) times the full annual cost of coverage for medical, dental and vision benefits covering Executive and his family welfare benefits covered dependents for the year in which the Date of Termination occurs, payable in a lump sum on the sixtieth (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits60th) which are at least day following the Date of Termination (such payment shall hereinafter be referred to as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date“Health Care Benefit”). Notwithstanding the foregoingforegoing provisions of Section 4, if in the event that the Executive obtains comparable coverage under any welfare benefits provided by another employer, then is a “specified employee” (within the amount meaning of coverage required Section 409A of the Code and with such classification to be provided determined in accordance with the methodology established by the Company hereunder applicable employer), amounts and benefits (other than the Accrued Obligations) that are deferred compensation (within the meaning of Section 409A of the Code) that would otherwise be payable or provided under Section 4(a)(i) during the six (6)-month period immediately following the Date of Termination shall instead be reduced by paid, with interest on any delayed cash payment at the amount of coverage applicable federal rate provided by such other employer’s welfare benefit plans.
(dfor in Section 7872(f)(2)(A) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageInterest”). If , on the Executive elects to receive COBRA Continuation Coveragefirst business day which is more than six (6) months following the Date of Termination, the Company shall pay all of the required premiums for the Executive and/or or the Executive’s family earlier death or “disability” (defined, for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policythis purpose, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment accordance with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement Section 409A of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1Code).
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death or by Disability; By the Executive for Good Reason. If Subject to Section 5 of this Agreement, if, during the Employment Period, (x) the Company shall terminate terminates the Executive’s employment other than for Cause, death or if Disability or (y) the Executive shall terminate terminates employment with the Company for Good Reason, the Company’s obligations Reason (except to the Executive shall be as follows:extent covered by Section 4(b)):
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(iA) a lump sum cash payment within thirty (30) days following the Date of Termination equal to the aggregate of the following amounts: (1) the Executive’s Annual Base Salary and vacation pay accrued through the Date of Termination; (2) any Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election); and (3) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination and were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (1), (2), and (3), to the extent not previously paid, paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Controlclauses (1), (2), and (3) shall be hereinafter referred to as the “Accrued Obligations”);
(B) subject to the Executive’s delivery (and non-revocation) of an executed release of claims against the Company and the Partnership, and their respective officers, directors, employees and affiliates, in substantially the form attached hereto as Exhibit A (the “Release”), which Release must be delivered to the Company not later than forty-five (45) calendar days after the Date of Termination, and not revoked (as to the waiver of age discrimination claims contained therein) in accordance with the terms thereof, continuation of the Annual Base Salary as of the Date of Termination (disregarding any reduction in Annual Base Salary that constitutes Good Reason), payable in accordance with the Company’s regular payroll practices, for one year following the Date of Termination; provided that each such payment shall be increased by an amount equal to (i) one times the sum of (1) the greater of (x) the current Target Bonus and (y) the average of the Annual Bonus actually received by the Executive in the prior two (2) fiscal years (including, but not limited to, any portion of the Annual Bonus paid in the form of Equity Awards) plus (2) the average of the Annual Commissions actually received by the Executive in the prior two (2) fiscal years (provided that, for this purpose the 2013 Annual Commissions amount will be doubled and, if the Date of Termination occurs in 2014, this average amount will be based solely on the 2013 amount) (the sum of (1) greater of (x) and (y) plus (2), the “Relevant Bonus Amount”), divided by (ii) an the number of Annual Base Salary payments during such one-year period; further provided that such payments shall commence on the first regular payroll date which is sixty (60) or more days following the Date of Termination, with such first payment including any amount which would have been paid on any regular payroll date following the Date of Termination and prior to such first payment; and
(C) a lump sum cash payment within thirty (30) days following the Date of Termination equal to the product of (ia) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Relevant Bonus Amount and (iib) a fraction, the numerator of which is the number of days employed by elapsed in the Company during fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;365 (the “Pro-Rata Bonus”).
(ii) any then-unvested compensatory equity awards held by the Executive shall immediately vest as of the Date of Termination; provided that, for clarity, “equity awards” for this purpose shall not include the “Contingent Consideration” (as defined in the Merger Agreement), the terms of which are fully incorporated in the Merger Agreement; further provided that, as to performance-based equity awards, (1) for any performance periods completed prior to the Date of Termination, such awards shall immediately vest and pay based on the level of actual attainment of performance goals, (2) for any performance periods commenced, but not completed, prior to the Date of Termination, such awards shall remain outstanding through the end of the current performance period and shall immediately vest and pay (or fail to vest and be forfeited) (A) based on the level of actual attainment of performance goals, (B) with the number of shares which otherwise would vest and pay then being pro-rated based on the portion of the applicable performance period elapsed through the Date of Termination and (3) for any performance periods that commence after the Date of Termination, such awards shall be forfeited.
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan extent not theretofore paid or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentprovided, the Company shall arrange timely pay or provide to provide the Executive and his family welfare any other amounts or benefits (includingrequired to be paid or provided or that the Executive is eligible to receive under any plan, without limitationprogram, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans policy or practice or contract or agreement of the Company applicable with respect to through the Executive Date of Termination (such other amounts and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by hereinafter referred to as the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageOther Benefits”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Employment Agreement (Cole Real Estate Investments, Inc.)
Obligations of the Company Upon Termination. 4.1 5.1 If by the Company other than for Cause or by the Executive for Good ReasonConstructive Termination or by the Company Other Than for Cause or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for CauseCause or Disability, or if the Executive shall terminate employment for Good ReasonConstructive Termination, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Datesuch termination of employment, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary Annual Base Salary and any accrued paid time off through the date of the Change in ControlTermination Date;
(ii) an amount equal to the product of (i) the annual bonus Annual Bonus (as defined in Section 3.2(b)) for the calendar year immediately preceding the calendar year Performance Period in which the Change in Control Termination Date occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company actually worked during the calendar year in which the Change in Control occurssuch Performance Period, and the denominator of which is 365;; or, if greater, the amount of any Annual Incentive paid or payable to the Executive with respect to the Performance Period for the year in which the Termination Date occurs; and
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;.
(ivb) an amount The Company shall, within thirty business days of such termination of employment, pay the Executive a cash payment equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual BonusSeverance Incentive.
(bc) The provisions of the applicable award agreement shall control the extent, if any, to which (i) any stock incentive award granted to the Executive under any Plan which has not become exercisable as of the Termination Date shall vest; (ii) any forfeiture conditions that as of the Termination Date are applicable to any deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company pursuant to the Incentive Plan, a successor plan or otherwise shall lapse; or (iii) any stock options (including options vested as of the Termination Date) shall remain exercisable. If the effect of a Change in Control is not specifically addressed in the applicable award agreement, (i) on the Termination Date, the Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise Plan which have not become exercisable as of the date of the Change in Control Termination Date; and (ii) all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control the Termination Date are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company pursuant to the Incentive Plan, a successor plan or otherwise shall lapse immediately.
(cd) Except as provided in subsections (de) and (ef), for a one year period following during the Executive’s termination Employment Period (or until such later date as any Welfare Plan of employmentthe Company may specify), the Company shall arrange continue to provide to the Executive and his the Executive’s family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits, but excluding medical or other health plans) which are at least as favorable as those provided under the most favorable welfare plans Welfare Plans of the Company applicable (i) with respect to the Executive and his or her family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Termination Date, or (ii) with respect to other peer executives and their families during the Employment Period. In determining benefits under such Welfare Plans, the Executive’s annual compensation attributable to base salary and incentives for any plan year or calendar year, as applicable, shall be deemed to be not less than the Executive’s Annual Base Salary and Annual Incentive. The cost of the welfare benefits provided under this Section 5.1(d) shall not exceed the cost of such benefits to the Executive immediately before the Termination Date or, if less, the Effective Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided Welfare Plans sponsored by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plansWelfare Plans.
(de) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Executive’s eligibility for any retiree medical coverage shall be determined under the relevant plan, with additional age or service credited provided in the Executive’s employment agreement, if any. The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive is not eligible for retiree medical coverage and elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following after the Termination Date. For purposes of determining eligibility for and the time of commencement of retiree benefits under any Welfare Plans of the Company, the Executive’s credited service shall be the Executive’s credited service at the Termination DateDate plus five years and the Executive’s age shall be deemed to be the Executive’s age at the Termination Date plus five years. If the Executive is eligible for additional credited service or deemed age under an employment agreement or other contract with the Company, the additional service and age provided by this Section 5.1(f) shall be in addition to any service and/or age credit provided under an employment agreement or contract.
(eg) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the The Executive shall cease to participate be fully vested in the Company’s group term life insuranceExecutive Supplemental Retirement Plan and Benefit Restoration Plan or any successor or replacement plans (the “Supplemental Plans”). For purposes of the Supplemental Plans, the Executive’s credited service shall be the Executive’s credited service at the Termination Date plus five years and the Executive’s age shall be deemed to be the Executive’s age at the Termination Date plus five years. The amount payable under Section 5.1(b) of this Agreement shall be taken into account for purposes of determining the amount of benefits to which the Executive is entitled under the Supplemental Plans as though the amount was earned equally over the Employment Period. If the Executive is eligible for additional credited service or deemed age under an employment agreement or other contract with the Company, the additional service and age provided by this Section 5.1(g) shall be in addition to any service and/or age credit provided under an employment agreement or contract.
(fh) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(gi) To For the extent period stated below, the Company shall continue to pay all premiums on the Executive’s whole life insurance policy (the “Policy”) issued under the Executive Life Insurance Program. The payments under Section 5.1(i) are in lieu of any payments under Section 5.1(d) with respect to the Policy. The premium payments shall be made until the earlier of:
(i) the fifth anniversary of the Termination Date, or
(ii) the later to occur of the tenth anniversary of the Policy or the Executive reaching age 64.
(j) Notwithstanding anything in Sections 5.1(a) through (i) to the contrary, if the Company should, in its sole discretion, determine that immediately any right to payment of an amount pursuant to this Agreement (including payments under Article VI) represents the right to payment of deferred compensation subject to Code Section 409A (a “Covered Payment”), then the following provisions shall apply:
(i) If, as of the Termination Date, the Executive is a Specified Executive (as defined below), then no Covered Payment shall be made until as soon as administratively possible after the date that is six months after the Termination Date (the “Postponement Date”), and any Covered Payment(s) that would otherwise have been made to the Executive prior to the Change Postponement Date shall be withheld and paid to the Executive on the Postponement Date in Controla lump sum. A “Specified Executive” for purposes of this Agreement is any employee of the Company who, for the twelve month period beginning on any April 1, was, at any time during the twelve month period ending on the immediately preceding December 31, a “key employee” of the Company within the meaning of Code Section 416(i) (without regard to subparagraph (5) thereof).
(ii) Notwithstanding any other provision of the Agreement to the contrary, (A) the time or schedule of any Covered Payment shall not be accelerated for any reason, except as may be specifically provided under Treas. Regs. Section 1.409A-3(j) or any successor provision; and (B) except as otherwise provided in Section 5.1(j)(i), above, or as may be specifically provided in Treas. Regs. Section 1.409A-2(b)(7) or any successor provision, no Covered Payment shall be delayed to a date after the designated payment date.
(k) Notwithstanding any provision of this Agreement to the contrary, if the Executive becomes entitled to payment and/or benefits provided by this Agreement or any other amounts in the nature of compensation, whether alone or together with other payments or benefits that the Executive receives or realizes or is then entitled to receive or realize from the Company or any of its affiliates or any other person whose actions result in a change of ownership or effective control of the Company, and such payments and/or benefits would constitute an “excess parachute payment” within the meaning of Code Section 280G and/or any corresponding and applicable state law provision, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references payments and/or benefits provided to the Company contained in Executive under this Agreement referring will be reduced by reducing the amount of payments and benefits payable to the Executive (the “280G Reduction”) to the extent necessary so that no portion of the Executive’s payments or benefits will be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties are incurred by the Executive with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the “Excise Tax”); but only if (A) the net amount of such payments and benefits, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced payments and benefits) is greater than or equal to (B) the net amount of such payments and benefits without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such payments and benefits and the amount of Excise Tax to which the Executive may would be entitled subject in respect of such unreduced payments and benefits). Any 280G Reduction pursuant to this paragraph shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated effectuated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving reducing the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. Ifhereunder, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidnecessary, in the following order: (A) any severance payment due pursuant to Section 5.1(b), (B) any premiums on life insurance under Section 5.1(i), (C) any premiums on life insurance under Section 5.1(e), and (D) the additional credited service or deemed age pursuant to Section 5.1(g).
Appears in 1 contract
Samples: Employment Continuity Agreement (Virginia Electric & Power Co)
Obligations of the Company Upon Termination. 4.1 If by the Company other than Executive's employment is terminated for Cause or by the Executive for Good Reason. If any reason during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by obligations on the Companypart of the Company to Executive, other than the obligation to payment of the following:
(a) the Company shall pay to Executive a lump sum cash payment within 30 days after the Executive in cash the Date of Termination of (i) Executive’s unpaid salary 's Base Salary earned through the Date of Termination Date, plus any accrued paid time off, in each case to the extent not theretofore paid, and (ii) unless Executive has elected a different payout date in a prior deferral election, any compensation previously paiddeferred by Executive (together with any accrued interest or earnings thereon) to the extent not theretofore paid (the sum of the amounts described in clauses (i) and (ii) shall be hereinafter referred to as the "Accrued Obligations"); and
(b) If Executive is terminated by the Company for any reason other than for cause, Executive shall be entitled to receive a further lump sum cash payment from the Company, within 30 days after the Date of Termination, equal to 50% of Executive's Base Salary in effect on the Date of Termination (the "Severance Payment"). However, the Company shall be entitled to reduce the Severance Payment by an amount equal to (i) the difference between the Fair Market Value of the Company's Class A Common Stock, as such term is defined in the Option Agreement, on the Date of Termination, and the Exercise Price, as such term is defined in the Option Agreement, (ii) multiplied by the number of option shares that have vested as of the Date of Termination. Notwithstanding the aforementioned, in no case shall Executive be responsible to pay the Company any amounts under this Section 6(c), nor shall the Company be obligated to pay an amount under this Section 6(c) higher than the Severance Payment.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company (a) Termination for Good Reason or for reasons other than for Cause Cause, Death or by the Executive for Good ReasonIncapacity. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, Cause or if Incapacity or the Executive shall terminate his or her employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within ten (10) days after the sum Date of Termination the aggregate of the following amounts:
(iA) the sum of (1) the Executive’s currently effective Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii2) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Annual Bonus and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during the current calendar year in which through the Change in Control occursDate of Termination, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, 365 and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation pay, in each case to the extent not previously paidtheretofore 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 Executive’s Annual Base Salary.
(ii) for the duration of the Employment Period after the Executive’s Date of Termination, the Company shall continue medical and dental benefits to the Executive and/or the Executive’s family and the rights of the Executive and/or the Executive’s family under Section 4980B(f) of the Internal Revenue Code shall commence at the end of such period;
(iii) the Company shall, at its sole expense as incurred, provide the Executive with reasonable outplacement services, the provider and scope of which shall be selected by the Company in its sole discretion;
Appears in 1 contract
Samples: Change in Control Agreement (Brink's Home Security Holdings, Inc.)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If (a) If, during the Employment PeriodTerm, the Company shall terminate the Executive’s employment other than for Cause, Cause or if Disability or the Executive shall terminate the Executive’s employment for Good Reasonpursuant to Section 4(b)(i) then, subject to Section 5(c):
(i) the Company’s obligations Company shall pay to the Executive shall be as follows:
(a) The Company shall, in a lump sum cash payment within thirty business (30) days of the Termination Date, pay to the Executive a single lump sum cash payment equal to Date the sum of the following amounts:
: (iA) the Executive’s Base Salary then in effect through the Termination Date to the extent not previously theretofore paid, the salary and (B) any accrued vacation pay to the extent not theretofore paid time off through the date and (C) any other amounts earned, accrued or owing but not yet paid or reimbursed under Section 3 (including any Bonus under Section 3(c) that is earned and accrued as of the Change Termination Date) of this Agreement (the sum of the amounts described in Controlthis Section 5(a)(i) shall be hereinafter referred to as the “Accrued Obligations”);
(ii) the Company shall pay to the Executive in a lump sum cash payment within thirty (30) days of the Termination Date an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;$187,500; and
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coveragecontinuation of health plan benefits to the extent authorized by and consistent with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) after the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in a continuation at the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay expense of such continuation coverage on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after twelve (12) months following the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(hb) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If (i) by the Company for Cause or Disability, (ii) by the Executive other than for Good Reason. Ifpursuant to Section 4(b)(ii)), during the Employment Periodor (iii) by reason of Executive’s death, the Company terminates shall have no obligation under this Agreement to pay any amount to the Executive, other than payment of the Accrued Obligations. The Accrued Obligations shall be paid to the Executive or as otherwise provided pursuant to Section 8(a) in a lump sum in cash within thirty (30) days of the Termination Date or sooner, to the extent required by law.
(c) The Company’s obligations to pay any severance amount and provide benefits hereunder in excess of Accrued Obligations is subject to and conditioned upon the Executive’s execution of a Release in the form set forth as Exhibit A to this Agreement, which Release shall be delivered to the Company within forty-five (45) days of the termination of the Executive’s employment with the Company. Such release will provide for Cause or a seven-day revocation period if required by applicable law (the Executive terminates employment other than for Good Reason “Revocation Period”). Notwithstanding the above, if any severance payments would otherwise be paid on a date prior to the expiration of the Revocation Period, such payment shall instead be paid on the business day immediately following the expiration of the Revocation Period (including death or disability), this Agreement shall terminate without further obligation provided that no revocation right has been exercised by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid).
Appears in 1 contract
Samples: Employment Agreement (Eloqua, Inc.)
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other for a Reason Other than for Cause Cause, Death or Disability or Termination by the Executive Employee for Good Reason. If during the Employment PeriodEmployee’s employment is terminated by: (I) the Company for any reason other than Cause, Death or Disability; or (2) the Employee for Good Reason:
(i) the Company shall terminate pay the Executive’s employment other Employee the following (collectively, the “Accrued Obligations”): (A) within five (5) business days after the Date of Termination, any earned but unpaid Annual Base Salary; (B) within a reasonable time following submission of all applicable documentation, any expense reimbursement payments owed to the Employee for expenses incurred prior to the Date of Termination; and (C) no later than March 15th of the year in which the Date of Termination occurs, any earned but unpaid Annual Bonus payments relating to the prior calendar year;
(ii) the Company shall pay the Employee no later than March 15th of the calendar year following the year in which the Date of Termination occurs, a prorated Annual Bonus based upon the actual Annual Bonus that would have been earned by the Employee for Causethe year in which the Date of Termination occurs (based upon the target Annual Bonus Opportunity in the year in which the Date of Termination occurred, or the prior year if no target Annual Bonus Opportunity has yet been determined, and the Executive actual satisfaction of the applicable performance measures, but ignoring any requirement under the Annual Bonus plan that the Employee must be employed on the payment date) multiplied by the percentage of the calendar year completed before the Date of Termination;
(iii) the Company shall terminate pay the Employee, no later than the sixty-fifth (65th) calendar day after the Date of Termination, a lump-sum payment equal to 300% of the sum of: (A) the Employee’s Annual Base Salary in effect immediately prior to the Date of Termination (disregarding any reduction in Annual Base Salary to which the Employee did not expressly consent in writing); and (B) the highest Annual Bonus paid to the Employee by the Company within the three (3) years preceding his termination of employment for Good Reasonor, if higher, the Company’s obligations target Annual Bonus Opportunity in the year in which the Date of Termination occurs;
(iv) all stock option, restricted stock, profits interest and other equity-based incentive awards granted by the Company that were outstanding but not vested as of the Date of Termination shall become immediately vested and/or payable, as the case may be, unless the equity incentive awards are based upon satisfaction of performance criteria (not based solely on the passage of time); in which case, they will only vest pursuant to their express terms, provided, however, that any such equity awards that are vested pursuant to this provision and that constitute a non-qualified deferred compensation arrangement within the Executive meaning of Code Section 409A shall be paid or settled on the earliest date coinciding with or following the Date of Termination that does not result in a violation of or penalties under Section 409A; and
(v) the Company shall provide the Employee with certain continued welfare benefits as follows:
(aA) The Any life insurance coverage provided by the Company shallshall terminate at the same time as life insurance coverage would normally terminate for any other employee that terminates employment with the Company, and the Employee shall have the right to convert that life insurance coverage to an individual policy under the regular rules of the Company’s group policy. In addition, if the Employee is covered under or receives life insurance coverage provided by the Company on the Date of Termination, then within thirty (30) business days after the Date of Termination, the Termination Date, Company shall pay to the Executive Employee a single lump sum cash payment equal to thirty-six (36) monthly life insurance premiums based on the sum monthly premiums that would be due assuming that the Employee had converted his Company life insurance coverage that was in effect on the Notice of Termination into an individual policy.
(B) As long as the following amounts:
Employee pays the full monthly premiums for COBRA coverage, the Company shall provide the Employee and, as applicable, the Employee’s eligible dependents with continued medical and dental coverage, on the same basis as provided to the Company’s active executives and their dependents until the earlier of: (i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times years after the sum Date of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, Termination; or (ii) the 90date the Employee is first eligible for medical and dental coverage (without pre-day period immediately preceding existing condition limitations) with a subsequent employer. In addition, within thirty (30) business days after the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount Date of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation CoverageTermination, the Company shall pay all the Employee a lump sum cash payment equal to thirty-six (36) monthly medical and dental COBRA premiums based on the level of the required premiums coverage in effect for the Executive and/or the Executive’s Employee (e.g., employee only or family for the 12 months following the Executive’s Termination Date.
(ecoverage) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary Date of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiaryTermination.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Employment Agreement (Black Knight Financial Services, Inc.)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by (a) By the Executive for Good Reason. If during the Employment Period, ; By the Company shall terminate the Executive’s employment other than Other Than for Cause, Death or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause Cause, death or if Disability or the Executive terminates employment other than for Good Reason Reason:
(including death or disability1) the Company shall pay to the Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
(A) the sum of (i) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; (iv) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in subclauses (i), (ii), (iii) and (iv), the “Accrued Obligations”) and (v) an amount equal to the product of (x) the target Annual Bonus paid or payable, without regard to the satisfaction of any applicable performance targets at their target performance level, for the fiscal year during which the Employment Period is terminated under this Agreement paragraph (the “Target 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 (the “Pro Rata Bonus”); provided, that notwithstanding the foregoing, if the Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Bonus described in clause (iii) above, then for all purposes of this Section 5 (including, without limitation, Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement, shall terminate without further obligation apply to the same portion of the amount described in such clause (iii), and such portion shall not be considered as part of the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined below); and
(B) the amount equal to the product of (x) two and (y) the sum of the Executive’s Annual Base Salary and the Target Annual Bonus;
(2) for three years after the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy (the “Benefit Continuation Period”), the Company shall provide health care and life insurance benefits to the Executive and/or the Executive’s family at least equal to, and at the same after-tax cost to the Executive and/or the Executive’s family, as those that would have been provided to them in accordance with the plans, programs, practices and policies providing health care and life insurance benefits and at the benefit level described in Section 3(b)(4) if the Executive’s employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and the Affiliated Companies and their families, including but not limited to any retiree medical plan for which the Executive or the Executive’s family was eligible prior to or as of the Date of Termination; provided, however, that, (A) the cost of such coverage (based on prevailing rates under Section 4980B of the Code or other applicable law (“COBRA”)) shall be reported by the Company as taxable income to the Executive to the extent reasonably determined by the Company or the Executive to be necessary to avoid such coverage from being considered to have been provided under a discriminatory self-insured medical reimbursement plan pursuant to Section 105(h) of the Code, but otherwise such coverage shall be provided at the same after-tax cost to the Executive and/or the Executive’s family as required by this Section 5(a)(i)(2), (B) such coverage may, if elected by the Company, be provided through the Executive electing coverage under COBRA for the maximum allowable period and the Company’s paying the premiums for such coverage on the Executive’s behalf, (C) if the Executive becomes re-employed with another employer and is eligible to receive health care and life insurance benefits under another employer-provided plan, the health care and life benefits provided hereunder shall be secondary to those provided under such other than plan during such applicable period of eligibility, and (d) to the obligation extent such coverage cannot be provided to the Executive following the expiration of the maximum applicable COBRA period because it is not allowed by a third-party insurance carrier, or to the extent the provision of such coverage would result in tax penalties to Executive pursuant to Section 409A of the Code, in lieu of such coverage the Company shall pay to the Executive on the first day of each month of the Benefit Continuation Period in which such coverage is not provided an amount in cash equal to the Executive’s unpaid salary through cost of the Termination DateExecutive purchasing such coverage on the open market, plus any accrued paid as reasonably determined by the Company. For purposes of determining eligibility (but not the time offof commencement of benefits) of the Executive for retiree welfare benefits pursuant to the retiree welfare benefit plans, the Executive shall be considered to have remained employed until the end of the Benefit Continuation Period and to have retired on the last day of such period, and the Company shall take such actions as are necessary to cause the Executive to be eligible to commence in each case the applicable retiree welfare benefit plans as of the applicable benefit commencement date.
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services substantially similar to those available to the Executive immediately prior to the Date of Termination, provided that such outplacement benefits shall end not later than the last day of the second calendar year that began after the Date of Termination; and
(4) except as otherwise set forth in the last sentence of Section 6, to the extent not previously theretofore paid or provided, the Company shall timely pay or provide to the Executive any Other Benefits (as defined in Section 6) in accordance with the terms of the underlying plans or agreements. Notwithstanding the foregoing provisions of this Section 5(a)(1), in the event that the Executive is a “specified employee” within the meaning of Section 409A of the Code (as determined in accordance with the methodology established by the Company as in effect on the Date of Termination) (a “Specified Employee”), amounts that would otherwise be payable and benefits that would otherwise be provided under Section 5(a)(1) during the six-month period immediately following the Date of Termination (other than the Accrued Obligations) shall instead be paid, with interest on any delayed payment at the rate equal to the ninety-day London Interbank Offered Rate, determined on the first day during such six-month period, plus 3.00% (such rate referred to herein as “Interest”), or provided, as the case may be, on the first business day after the date that is six months following the Executive’s “separation from service” within the meaning of Section 409A of the Code (the “Delayed Payment Date”).
Appears in 1 contract
Samples: Change in Control Employment Agreement (Valspar Corp)
Obligations of the Company Upon Termination. 4.1 If by (a) Upon the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the termination of Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amountsany reason:
(i) The Company shall pay to Executive in a lump sum within thirty (30) days after the Separation Date (A) any Base Salary that has accrued but is unpaid, (B) any Annual Incentive that has been earned for the year prior to the extent not previously paidyear in which the Separation Date occurs, the salary but is unpaid, (C) any reimbursable expenses that have been incurred but are unpaid, and (D) any accrued paid time off through the date but unused vacation (but not personal or sick days), as of the Change in Control;Separation Date; and
(ii) an amount equal The Company shall provide any vested plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding (except as hereinafter provided in Sections 4(c) and 4(d)) any Company severance pay program or policy) in accordance with the Change in Control occurs multiplied by (ii) a fraction, the numerator terms of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonussuch plans.
(b) The If Executive’s employment terminates on account of Executive’s death, Disability, termination by Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan without Good Reason, or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive termination by the Company shall lapse immediatelyfor Cause, the Company will make no further payments to Executive other than those described in Section 4(a).
(c) Except as provided If Executive’s employment terminates on account of a termination by the Company without Cause or a termination by Executive for Good Reason and if Executive complies with the other provisions in subsections (d) and (ethis Agreement, then in addition to those payments described in Section 4(a), Executive shall be entitled to:
(i) Receive an amount equal to twelve (12) months of Executive’s Base Salary as in effect immediately preceding the Separation Date (or, if greater, Executive’s Base Salary as in effect immediately preceding any action by the Company described in Section 3(c)(iii) for which Executive terminated Executive’s employment for Good Reason), paid in equal installments on the Company’s regularly-scheduled paydays over a one year six-month period, with such period to commence immediately following the Separation Date; and
(ii) Continue any health care (medical, dental and vision) plan coverage provided to Executive and Executive’s termination spouse and dependents at the time of employmentthe Separation Date for twelve (12) months after the Separation Date, on the same basis and at the same cost to Executive as available to similarly-situated active employees of the Company during such period. If the Company reasonably determines that maintaining such coverage for Executive or Executive’s spouse or dependents is not feasible under the terms and provisions of such plans and programs (or where such continuation would adversely affect the tax status of the plan or program pursuant to which the coverage is provided), the Company shall arrange pay Executive cash equal to provide the Executive and his family welfare benefits (includingestimated cost of the expected Company contribution therefor for such same period of time, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under with such payments to be made in accordance with the most favorable welfare plans established payroll practices of the Company applicable with respect (no less frequently than monthly) for the period during which such cash payments are to be provided.
(d) If, during the Executive Employment Period and his family during on or within twelve (12) months following a Change of Control, Executive’s employment terminates, either the (i) 90-day period immediately preceding by the Change in ControlCompany without Cause, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, and if Executive complies with the Company’s re-engagement other provisions in this Agreement, Executive shall receive, in lieu of the Executive as a consultant, an advisor or otherwise as an independent contractor all other claims and payments (including but not limited to the Company shall not prohibit severance described in Section 4(c)) other than those payments described in Section 4(a):
(i) An amount equal to twenty-four (24) months of Executive’s Base Salary as in effect immediately preceding the Executive from receiving the payments and benefits provided Separation Date (or, if greater, Executive’s Base Salary as in this Section 4.1.
4.2 If effect immediately preceding any action by the Company described in Section 3(c)(iii) for Cause or by the which Executive other than for Good Reason. If, during the Employment Period, the Company terminates the terminated Executive’s employment for Cause or if Good Reason) paid in equal installments on the Company’s regularly-scheduled paydays over a twenty-four (24) month period, with such period to commence immediately following the Separation Date; and
(ii) An amount in cash equal to the Annual Incentive paid to Executive terminates employment other than for Good Reason (including death or disability)the year immediately prior to the year in which the Separation Date occurs, paid in equal monthly installments over a twelve-month period, with such period to commence immediately following the Separation Date. To the extent that any portion of the Annual Incentive on which the amount payable pursuant to this Agreement shall terminate without further obligation by Section 4(d)(ii) was made in stock of the Company, other than the obligation to pay to value of such stock shall be the Executive in cash Fair Market Value (as defined herein) of such stock at the Executive’s unpaid salary through close of business on the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidgrant date.
Appears in 1 contract
Samples: Employment Agreement (Wayside Technology Group, Inc.)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than for Cause or Disability; by the Executive for Good Reason. If If, during the Employment Period, (x) the Company shall terminate terminates the Executive’s employment employment, other than for CauseCause or Disability, or if (y) the Executive shall terminate terminates employment for Good Reason, the Company’s obligations to the Executive shall be as follows:,
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum cash payment equal in cash, within 30 days after the Date of Termination, his Annual Base Salary through the Date of Termination to the extent not theretofore paid; and
(ii) the Company shall pay to the Executive in a lump sum in cash upon the earlier of (a) a date no later than 30 days after the Executive’s death, or (b) the first day of the seventh month following Executive’s “separation from service” as defined in Section 409A of the Internal Revenue Code of 1986 (the “Code”) and applicable regulations, without giving effect to any elective provisions that may be available under such definition (“Separation from Service”), the aggregate of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to A. the product of (ix) the Executive’s target annual incentive bonus for the calendar year immediately preceding the calendar year in which the Change in Control Date of Termination occurs multiplied by (ii“Target Annual Bonus”) and (y) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;365 (the “Prorata Current Year Bonus”); and
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount B. a severance payment equal to three (3) 300% times the sum of (i) the Executive’s Annual Base Salary and the (ii) Target Annual Bonus.; and
(biii) The Executive the Company shall become fully vested continue to provide, for thirty-six (36) months after the Date of Termination (the “Welfare Benefits Continuation Period”), the benefits set forth in paragraph (c) of Section 3 as if he had remained employed by the Company pursuant to this Agreement throughout the Welfare Benefits Continuation Period. To the extent any and all stock incentive awards granted benefits described in paragraph (c) of Section 3 cannot be provided pursuant to the plan or program maintained by the Company for its executives, the Company shall provide such benefits outside such plan or program at no additional cost (including without limitation tax cost) to the Executive and his family. During any period when the Executive is eligible to receive health and similar benefits under another employer-provided plan, the benefits provided by the Company under this Section 5(a)(iii) may be made secondary to those provided under such other plan. During the Welfare Benefits Continuation Period, (A) the benefits provided in any plan or otherwise which have one calendar year shall not become exercisable as affect the amount of benefits to be provided in any other calendar year; (B) for all months after the initial 18 months of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until Welfare Benefits Continuation Period, the applicable option expiration date. All forfeiture conditions that as of a Change monthly COBRA premium for such group health benefits, determined in Control are applicable to any stock optionaccordance with Code Section 4980B and the regulations thereunder, deferred stock unit, restricted stock or restricted share units awarded shall be reimbursed to the Executive by the Company shall lapse immediately.
(c) Except as provided taxable compensation by including such amount in subsections (d) and (e), for a one year period following the Executive’s termination income in accordance with applicable rules and regulations (such income shall be grossed up as for taxes, as provided above); (C) the reimbursement of employment, the Company an eligible taxable expense shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans be made on or before December 31 of the Company applicable with respect to year following the Executive year in which the expense was incurred; and his family during either the (iD) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by rights pursuant to this Section 5(a)(iii) shall not be subject to liquidation or exchange for another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.benefit; and
(div) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for Executive’s equity or incentive awards outstanding on the Executive and/or Date of Termination shall be treated as follows: (x) all time-based restrictions on awards of restricted stock or unit awards shall lapse as of the Date of Termination, (y) each such option or stock appreciation right shall be fully vested and exercisable as of the Date of Termination and shall remain in effect and exercisable through the end of its original term, without regard to the termination of the Executive’s family for employment; and (z) any performance shares or units shall be governed by the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months terms and the Executive shall cease to participate in conditions of the Company’s group long-term life insurance.
incentive plan under which they were awarded. The payments and benefits provided pursuant to this paragraph (fa) The Company shall, at its sole expense, of Section 5 are intended as incurred, pay on behalf liquidated damages for a termination of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or Disability or for the actions of the Company leading to a termination of the Executive’s employment by the Executive for Good Reason, and shall be the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments sole and benefits provided in this Section 4.1exclusive remedy therefor.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause (a) Good Reason or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than Other Than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in ControlDeath, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, the Company terminates the Executive’s employment other than for Cause Cause, death or if Disability or the Executive terminates employment other than for Good Reason Reason:
(including death 1) Taubman will pay, or disability)will cause one of the Affiliated Companies to pay, this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination, the aggregate of the following amounts:
A. The sum of: (i) the Executive’s unpaid salary Annual Base Salary through the Date of Termination Date, plus any accrued paid time off, in each case to the extent not theretofore paid; (ii) the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed by the Company as of the Date of Termination; (iii) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs if such bonus has not been paid as of the Date of Termination; (iv) the product of (A) the higher of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any bonus or portion thereof that has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Executive was employed for less than 12 full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount, the “Highest Annual Bonus”) and (B) 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; (v) any compensation previously paiddeferred by the Executive (together with any accrued interest or earnings thereon) and that is not considered to be deferred compensation subject to Code Section 409A; (vi) and any accrued vacation pay, in each case, to the extent not theretofore paid (the sum of the amounts described in clauses (i), (ii), (iii), (iv), (v) and (vi), “Accrued Obligations”); and
B. In the case of a Window Period Termination, the amount equal to the product of (i) two and (ii) the sum of (A) the Executive’s Annual Base Salary and (B) the Executive’s target bonus under the Senior Short Term Incentive Plan or any successor plan for the year in which the Date of Termination occurs, or, in any case other than a Window Period Termination, the amount equal to the product of (i) two and one-half (2.5) and (ii) the sum of (A) the Executive’s Annual Base Salary and (B) the Highest Annual Bonus.
(2) Other than in the event of a Window Period Termination, for 30 months after the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company will continue medical and other welfare benefits to the Executive and/or the Executive’s family as in effect generally at any time thereafter with respect to other peer executives of the Company and their families; provided, however, that, if the Executive becomes reemployed with another employer and is eligible to receive comparable benefits under another employer-provided plan, the medical and other welfare benefits described herein will terminate. 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 will be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. Any Company cost for any medical or other welfare benefits provided under the preceding sentences of this Section 5(a)(2) will be paid on a monthly basis, and the Executive will pay any employee or retiree share of the cost of any such benefits on a monthly basis. Any medical or other welfare benefit provided for under the preceding sentences of this Section 5(a)(2) that provides for a deferral of compensation subject to Code Section 409A because it does not meet the exemption requirements under Treasury Regulations Section 1.409A-1(b)(9)(v)(B) or (D), will be made or reimbursed on or before the end of the calendar year following the calendar year in which an expense was incurred, will not affect the expenses eligible for reimbursement in any other calendar year, and cannot be liquidated or exchanged for any other benefit.
(3) Other than in the event of a Window Period Termination, Taubman will provide, or cause one of the Affiliated Companies to provide, the Executive with outplacement benefits through the services of an independent outplacement consulting firm selected by Taubman, at prevailing rates, during the 12-month period following the Date of Termination.
(4) To the extent not theretofore paid or provided, Taubman will timely pay or provide, or cause one of the Affiliated Companies to timely pay or provide, to the Executive any Other Benefits (as defined in Section 6).
Appears in 1 contract
Samples: Change of Control Employment Agreement (Taubman Centers Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by (a) By the Executive for Good Reason; or by the Company Other Than for Cause, Death or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for Cause, Cause or if Disability or the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii2) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Target Annual Bonus and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
365 and (iii3) all amounts any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation pay, in each case to the extent not previously paidtheretofore paid and in full satisfaction of the rights of the Executive thereto (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) __ and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Target Annual Bonus; and
C. an amount equal to the difference between (a) the actuarial equivalent of the aggregate benefits under the Company's qualified pension and profit-sharing plans (the "Retirement Plans") and any excess or supplemental pension and profit-sharing plans in which the Executive participates (collectively, the "Nonqualified Plans") which the Executive would have been entitled to receive if the Executive's employment had continued for the Separation Period, assuming (to the extent relevant) that the Executive's compensation during the Separation Period would have been equal to the Executive's compensation as in effect immediately before the termination or, if higher, on the Effective Date, and that employer contributions to the Executive's accounts in the Retirement Plans and the Nonqualified Plans during the Separation Period would have been equal to the average of such contributions for the three years immediately preceding the Date of Termination or, if higher, the three years immediately preceding the Effective Date, and (b) the actuarial equivalent of the Executive's actual aggregate benefits (paid or payable), if any, under the Retirement Plans and the Nonqualified Plans as of the Date of Termination (the actuarial assumptions used for purposes of determining actuarial equivalence shall be no less favorable to the Executive than the most favorable of those in effect under the Retirement Plan and the Nonqualified Plans on the Date of Termination and the date of the Change of Control);
(ii) for the Separation Period, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families (in each case with such contributions by the Executive as would have been required had the Executive's employment not been terminated); provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility, and for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed during the Separation Period and to have retired on the last day of such period;
(iii) if the Executive was entitled to receive financial planning and/or tax return preparation benefits immediately before the Date of Termination, the Company shall continue to provide the Executive with such financial planning and/or tax return preparation benefits with respect to the calendar year in which the Date of Termination occurs (including without limitation the preparation of income tax returns for that year), on the same terms and conditions as were in effect immediately before the Date of Termination (disregarding for all purposes of this clause (iii) any reduction or elimination of such benefits that was the basis of a termination of employment by the Executive for Good Reason); and
(iv) the Executive shall be entitled to purchase the Company-leased automobile, if any, being used by the Executive prior to termination at the "buyout amount" specified by the vehicle's lessor.
(v) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"). To the extent any benefits described in Section 6(a)(ii) and (iii) cannot be provided pursuant to the appropriate plan or program maintained for employees, the Company shall provide such benefits outside such plan or program at no additional cost (including without limitation tax cost) to the Executive.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If (a) Prior to or More than 24 Months after a Change in Control: Termination by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the ; Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occursOther Than for Poor Performance, and the denominator Cause or Disability; Expiration of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted Employment Period. If, prior to the Executive under any plan or otherwise which have not become exercisable as of the date of the more than 24 months after a Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following during the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the 's Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates 's employment other than for Poor Performance, Cause or Disability, or Executive terminates his employment for Good Reason (including death within a period of 90 days after the occurrence of the event giving rise to Good Reason, or disability), this Agreement shall terminate without further obligation by upon the Company, other than the obligation to pay to the Executive in cash expiration of the Executive’s unpaid salary Employment Period, as described in Section 3, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto and the period for revoking such Release (the "Release") has expired before the 30th day after the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment) the sum of (A) Executive's Base Salary through the Date of Termination Date, plus any accrued paid time off, in each case to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the "Accrued Obligations"); and
(ii) for the longer of (A) 18 months from the Date of Termination or (B) the remaining term of Executive's Employment Period (the "Normal Severance Period"), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly or other installments (not less frequently than monthly) as are customary under the Company's payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however, that the Company's obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company's obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) on the 30th day after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum in cash an amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive's bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously paidelected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards ("Restricted Stock") held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive's options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards ("Options") that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive's vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, (B) the 90th day following the end of the Normal Severance Period or (C) 10 years from the date of grant of the options; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits pursuant to the plans, policies, practices and programs under which such Other Benefits are provided.
(b) Prior to or More than 24 Months after a Change in Control: Termination by the Company for Poor Performance. If, prior to or more than 24 months after the occurrence of a Change in Control, the Company terminates Executive's employment for Poor Performance, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vi) below, only if Executive executes the Release and the period for revoking such Release expires before the 30th day after the Date of Termination):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment); and
(ii) for a period of 12 months after the Date of Termination (the "Poor Performance Severance Period"), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly installments or other installments (not less frequently than monthly) as are customary under the Company's payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however that the Company's obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company's obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) all grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(v) subject to the specific approval of the Compensation Committee, all of Executive's Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive's vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(v) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period or (C) 10 years from the date of grant of the options; and
(vii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits pursuant to the plans, policies, practices and programs under which such Other Benefits are provided.
(c) After or in Connection with a Change in Control: Termination by Executive for Good Reason;
Appears in 1 contract
Samples: Employment Agreement (American Safety Insurance Holdings LTD)
Obligations of the Company Upon Termination. 4.1 If In the event this Agreement and the Executive's employment are terminated pursuant to Section 9, the Company shall provide the Executive with the payments and benefits set forth below. The Executive acknowledges and agrees that the payments set forth in this Section 10 and the other agreements and plans referenced in this Agreement, constitute the sole and liquidated damages for a termination of this Agreement and his employment under Section 9. The Company's obligation to make the payments provided for in this Agreement and otherwise to perform its obligations hereunder shall not be affected by any setoff or counterclaim which the Company may have against the Executive except that the Company shall have the right to deduct any amounts owed by the Executive to the Company due to the Executive's misappropriation of Company funds or property from the payments set forth in this Section 10.
(a) Termination Because of Disability or for Cause by the Company or Due to Death or a Voluntary Termination by the Executive. If this Agreement and the Executive's employment are terminated because of Disability or for Cause by the Company or due to the death or through a Voluntary Termination by the Executive:
(i) the Company shall pay the Executive (or his beneficiary or legal representative, if applicable) his then current base salary described in Section 3 and his accrued, unused vacation pay through the Termination Date, as soon as practicable following the Termination Date;
(ii) the Company shall reimburse the Executive (or his beneficiary or legal representative, if applicable) for reasonable business expenses incurred, but not paid, prior to the Termination Date; and
(iii) the Executive (or his beneficiary or legal representative, if applicable) shall receive any other than for rights, compensation and/or benefits as may be due to the Executive following such termination to which he is entitled in accordance with the terms and provisions of any agreements referenced herein or plans or programs of the Company.
(b) Termination By the Company without Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate this Agreement and the Executive’s 's employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for without Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to :
(i) the Company shall not prohibit pay the Executive from receiving the payments (A) his then current base salary described in Section 3 and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. Ifaccrued, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to unused vacation pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offas soon as practicable following the Termination Date, and (B) continued then current monthly base salary described in each case Section 3 for a period of twenty-four (24) months following the Termination Date;
(ii) the Company shall maintain in full force and effect for the continued benefit of the Executive, for a period of twenty-four (24) months following the Termination Date, the welfare programs in which the Executive, his spouse and his dependents were participating immediately prior to the extent Termination Date at the level in effect and upon substantially the same terms and conditions (including without limitation contributions required by the Executive for such benefits) as existed immediately prior to the Termination Date; provided, that if the Executive, his spouse or his dependents cannot previously continue to participate in the Company programs providing such benefits, the Company shall arrange to provide Executive, his spouse and his dependents with comparable benefits from a third party insurer; provided, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period. If, at the end of the 24 month period, the Executive is receiving medical and dental benefits from the Company and is not eligible to receive such benefits under another employer-provided plan, the Executive and/or the Executive's family shall be entitled to continued medical and dental benefits under the Company programs providing such benefits during the 24 month period at the Executive's own expense pursuant to Title I, Part 6 of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"), and for such purpose, the end of such 24 month period shall be considered the date of the "qualifying event" as such term is defined by COBRA.
(iii) the Company shall reimburse the Executive for reasonable business expenses incurred, but not paid, prior to the Termination Date; and
(iv) the Executive shall receive any other rights, compensation and/or benefits as may be due to the Executive following such termination to which he is entitled in accordance with the terms and provisions of any other agreements, plans or programs of the Company.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death or by Disability; By the Executive for Good Reason. If Subject to Section 5, if, during the Employment Period, (x) the Company shall terminate the Executive’s employment other than for Cause, death or if Disability or (y) the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(iA) a lump sum cash payment within thirty (30) days after the Date of Termination equal to the aggregate of the following amounts: (1) the Executive’s Annual Base Salary and accrued vacation pay through the Date of Termination, (2) the Executive’s accrued Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election) if such bonus has not been paid as of the Date of Termination, and (3) the Executive’s business expenses that have not been reimbursed by the Employer as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (1) through (3), to the extent not previously paid, paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Controlclauses (1) through (3) shall be hereinafter referred to as the “Accrued Obligations”);
(iiB) subject to the Executive’s delivery (and non-revocation) of an executed release of claims against the Employer, FR and their respective officers, directors, employees and affiliates in substantially the form attached hereto as Exhibit B (the “Release”), which Release must be delivered to the Company not later than twenty-two (22) days after the Date of Termination, an amount equal to two (2) times the sum of (X) the Executive’s Annual Base Salary as of the Date of Termination and (Y) the Executive’s Target Bonus for the fiscal year in the which the Date of Termination occurs, paid in a lump sum cash payment on the thirtieth (30th) day after the Date of Termination; provided, however, that if the Date of Termination occurs within twenty-four (24) months following a Change in Control Event which also constitutes a “change in the ownership” of FR, a “change in effective control” of FR or a “change in the ownership of a substantial portion of the assets” of FR, as each such term is defined in Treas. Reg. Section 1.409A-3(i)(5), then (1) two and a half (2.5) times shall be substituted for two (2) times above and (2) the Executive shall not be required to execute a Release; and
(C) a lump-sum amount in cash equal to the product of (ix) the annual bonus Annual Bonus which would have been earned by the Executive for the calendar year immediately preceding the calendar fiscal year in which the Change in Control Date of Termination occurs multiplied by had the Executive remained employed throughout such fiscal year, based on the degree to which the applicable performance goals are achieved and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during the calendar fiscal year in which the Change in Control occursDate of Termination occurs through the Date of Termination, and the denominator of which is 365, which amount shall be paid on the date on which annual bonuses for the fiscal year in which the Date of Termination occurs are paid to senior executives of the Company generally, but not later than seventy-five (75) days after the end of the fiscal year in which the Date of Termination occurs;
(iiiii) all amounts previously deferred by Following the Date of Termination until the Executive under any nonqualified deferred compensation plan sponsored reaches age sixty-eight (68) (the “Benefits Period”), to the extent permitted by law, the CompanyCompany shall provide the Executive and Executive’s spouse and eligible dependents with medical and dental insurance coverage no less favorable to those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Date of Termination on the terms and conditions set forth herein (the “Health Care Benefit”); provided, together with any accrued earnings thereonhowever, and not yet paid by that the Company;
(iv) Executive shall pay the cost of such coverage in an amount equal to three (3) times the sum amount paid by active employees of the Company for similar coverage; provided, further, however, that if the Executive becomes re-employed with another employer and is entitled to receive health care benefits under another employer-provided plan, the Health Care Benefits provided hereunder shall cease. In the event of the Executive’s Annual Base Salary death during the Benefits Period, Health Care Benefits shall continue to be provided under this Section 4(a)(ii) through the end of the Benefits Period for the Executive’s spouse and the Annual Bonus.
(b) The Executive shall become fully vested eligible dependents who were enrolled in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable Health Care Benefits as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Datedeath. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare The benefits provided by another employer, then the amount of pursuant to this Section 4(a)(ii) will run concurrent with coverage required to be provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) and are referred to hereafter as the “Post-Employment Health Care Benefits”; and
(iii) To the extent not theretofore paid or provided, the Employer shall 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 its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”). Notwithstanding the foregoing provisions of Section 4(a)(i), in the event that the Executive is a “specified employee” (within the meaning of Section 409A of the Code and with such classification to be determined in accordance with the methodology established by the Company hereunder Company) (a “Specified Employee”), amounts and benefits (other than the Accrued Obligations) that are deferred compensation (within the meaning of Section 409A of the Code) that would otherwise be payable or provided under Section 4 (a)(i) during the six (6) month period immediately following the Date of Termination shall instead be reduced by paid, with interest on any delayed payment at the amount of coverage applicable federal rate provided by such other employer’s welfare benefit plans.
(dfor in Section 7872(f)(2)(A) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageInterest”). If , on the Executive elects to receive COBRA Continuation Coverage, first business day after the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 date that is six (6) months following the Executive’s Date of Termination (the “409A Payment Date”).
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Employment Agreement (First Industrial Realty Trust Inc)
Obligations of the Company Upon Termination. 4.1 If by The following provisions describe the obligations of the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive under this Agreement upon termination of his employment. However, except as explicitly provided in this Agreement, nothing in this Agreement shall be as follows:limit or otherwise adversely affect any rights which the Executive may have under applicable law, under any other agreement with the Company, or under any compensation, pension, thrift or other benefit plan, program, policy or practice of the Company.
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occursfor Cause, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in ControlGood Reason, or (ii) the 90-day period immediately preceding the Executive’s Termination Datedue to Death or Disability. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive without Good Reason, or due to the Executive’s death or Disability, he shall be entitled to his Base Salary, accrued but unpaid bonus for any year prior to the year of termination, and accrued vacation through his Date of Termination and all other than vested benefits under the terms of the Company’s employee benefit plans, subject to the terms of such plans.
(b) Termination by the Company without Cause or by the Executive for Good ReasonReason or by Reason of Merger or Change of Control. IfIn addition to the items in Section 11(a), during the Employment Period, the Company terminates if the Executive’s employment for is terminated by the Company without Cause or by the Executive for Good Reason or because of merger or change of control (in a situation where cause does not also exist), he shall be entitled, upon execution of a release of claims (exclusive of claims for indemnification under Section 13 or under Company benefit plans) in a form reasonably acceptable to the Company and without subsequent revocation within the period described in such release, to severance payments, in lieu of any other severance benefits, equal to two (2) times the Executive’s Base Salary, as in effect on the Date of Termination, plus (i) one (1) times Executive’s targeted annual incentive award in effect for the calendar year in which the Date of Termination occurs (or the targeted annual incentive award for the prior year if such has not then been determined), (ii) the annual incentive award for the calendar year in which the Date of Termination occurs and prorated for the portion of the calendar year in which the Executive was employed, (iii) the unpaid long-term incentive award for any Performance Period (as such term is defined under the Company’s Long-Term Incentive Plan Document (the “LTIP”)) ending prior to the year in which the Date of Termination occurs, and (iv) a pro-rated long-term incentive award for any long-term incentive awards for which the Performance Period has not ended as of the Date of Termination, with such pro-rated award to be calculated in accordance with the terms of the LTIP as if the termination was due to death, disability or normal retirement. The Executive also shall be entitled to any benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), provided that the Company will continue paying its portion of the medical and/or dental insurance premiums for the one year period following the Date of Termination. The annual and long-term incentive awards provided under this Section 11(b), (ii) and (iv) will be paid at target for individual/team goals and based on the calendar year actual results for Company-wide goals, and at the regular time that such payments are made to all employees in the plans, and shall be payable notwithstanding any terms of such plans to the contrary which otherwise require continued employment to receive an award. The Base Salary amount and the amounts provided for under this Section 11(b), (i) and (iii) shall be paid in a lump sum within ten (10) days of the date the release becomes effective. Payments under this Section 11(b) shall be paid or provided only at the time of a termination of the Executive’s employment that constitutes a “separation from service” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (“Code”) and the regulations and guidance promulgated thereunder. Further, if the Executive terminates employment other than is a “specified employee” as such term is defined under Section 409A of the Code and the regulations and guidance promulgated thereunder, any payments described under this Section 11(b) shall be delayed for Good Reason a period of six (including death 6) months following the Executive’s separation from service to the extent and up to an amount necessary to ensure such payments are not subject to the penalties and interest under Section 409A of the Code. If the payments are delayed as a result of the previous sentence, then on the first day following the end of such six (6) month period (or disabilitysuch earlier date upon which such amount can be paid under Section 409A of the Code without resulting in a prohibited distribution), this Agreement the Company shall terminate without further obligation by pay the Company, other than Executive a lump sum amount equal to the obligation to pay cumulative amount that would have otherwise been payable to the Executive in cash during such period, plus interest credited from the date of the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case separation from service to the extent not previously paiddate of payment at the “applicable federal rate” provided for in Section 7872(f)(2)(A) of the Code in effect as of the date of such separation from service.
Appears in 1 contract
Samples: Employment Agreement (Federal Home Loan Bank of Des Moines)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by By the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan Other Than for Death or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates 's employment other than for Good Reason (including due to the Executive's death or disability)Disability, this Agreement shall terminate without further obligation by the CompanyCompany shall, other than except as provided in clause (ii) below, pay the obligation to pay amounts described in subparagraph (i) below to the Executive in a lump sum in cash within 30 days after the Date of Termination:
(i) The amounts to be paid in a lump sum as described above are:
(A) The Executive's accrued but unpaid cash compensation (the "Accrued Obligations"), which shall equal the sum of (1) any portion of the Executive’s unpaid salary 's Annual Base Salary through the Date of Termination Date, plus that has not yet been paid; (2) any Bonus that the Executive has earned for a prior full calendar year that has ended prior to the Date of Termination but which has not yet been calculated and paid; (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) that has not yet been paid time off, in each case (subject to any applicable provisions of any deferred compensation plan with respect to the extent payment thereof); and (4) any accrued but unpaid vacation pay; and
(B) Severance pay equal to the Annual Base Salary; provided, however, that in connection with a termination by the Company other than for Cause following a Sale Event, such severance pay shall be equal to the Annual Base Salary multiplied by the number of years constituting the Post-Termination Restriction Period (as defined in Section 9(a)(ii)). (For example, if the Company, pursuant to its Restriction Election (as defined in Section 9(a)(ii)), elects a two-year Post-Termination Restriction Period, then severance pay will be equal to two times the Annual Base Salary.)
(ii) Notwithstanding the foregoing, if the Executive's employment is terminated for Cause, the Executive shall not previously paidbe entitled to the payments contemplated by clause (i)(B) of this Section 6(a) and the payment to the Executive in connection therewith shall be limited to payment of the Accrued Obligations and the Company shall have no further obligations under this Agreement. For purposes of this Agreement, "Cause" shall mean (1) conviction of the Executive by a court of competent jurisdiction of a felony (excluding felonies under the Motor Vehicle Code); (2) any act of intentional fraud against the Company; (3) any act of gross negligence or wilful misconduct with respect to the Executive's duties under this Agreement; and (4) any act of wilful disobedience in violation of specific reasonable directions of the Board consistent with the Executive's duties.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If Within thirty (30) days following termination of your employment for any reason, you (or your estate) shall be entitled to receive a lump sum payment equal to your earned but unpaid Base Salary through the date of termination, any bonus if declared or earned but not yet paid for a completed fiscal year, any expenses owed to you, and any amount arising from your participation in, or benefits under any employee benefit plans, programs or arrangements, which amounts shall be payable in accordance with the terms and conditions of such employee benefit plans, programs or arrangements (collectively, “Accrued Obligations”). In addition to the Accrued Obligations, if at any time following the date of this Agreement your employment or this Agreement is terminated by the Company other than for without Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate your resign your employment for Good Reason, the Company’s obligations you will be entitled to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment receive severance equal to the sum twelve (12) months of the following amounts:
(i) to the extent not previously paid, the salary your Base Salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to twelve (12) times the product monthly amount that the Company paid for you and your family’s participation in the Company’s health insurance plan during the month immediately preceding the termination date. Such severance payments will be made in accordance with the Company’s then current payroll practices throughout the twelve (12) month severance period. The foregoing and any rights you have under the equity compensation provisions of this Agreement or the Plan shall be your sole and exclusive remedy and in lieu of any other rights or remedies to which you may otherwise be entitled, whether at law, tort or contract, in equity or under this letter agreement upon or with respect to such termination of employment. Further, the receipt of any severance hereunder will be subject to you signing and not revoking a waiver of claims and general release in substantially the form attached hereto as Exhibit A (the “Release”), as such waiver may be modified from time to time to provide the broadest form of release and waiver of claims given the current state of the law. If within forty-five (45) days following your termination date, you do not either (i) execute the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, Release or (ii) you are solely responsible for the 90Release not becoming effective and irrevocable, you will forfeit all rights to any severance payments hereunder. In no event will severance payments be paid or provided unless and until the Release becomes effective. If such Release does become effective and irrevocable within forty-five (45) days following your termination date, the first installment payment of any severance payable to you hereunder shall include a catch-up payment for any amounts that would have otherwise been payable during such 45-day period immediately preceding but for this Release requirement. Except as otherwise expressly provided herein or in the Executive’s Termination Date. Notwithstanding the foregoingPlan, if the Executive obtains comparable coverage under you shall not be entitled to any welfare other salary, bonuses, employee benefits provided by another employer, then the amount of coverage required to be provided by or compensation from the Company hereunder shall be reduced by after the amount termination of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to employment and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of your rights to salary, bonuses, employee benefits and other compensation hereunder which would have accrued or become payable after the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive date of termination of employment shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to forfeited upon such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Companytermination, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidthose expressly required under applicable law (such as COBRA).
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 5.1 If by the Company other than for Cause or by the Executive for Good Reasona Qualifying Termination or by the Company Other Than for Cause or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for CauseCause or Disability, or if the Executive shall terminate employment for Good Reasona Qualifying Termination, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, shall pay to the Executive by no later than the Payment Date a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent Annual Base Salary and all earned but not previously paid, the salary and any accrued used paid vacation time off through the date of the Change in ControlTermination Date;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, Company or its Affiliates (together with any accrued earnings thereon, and ) which have not yet been paid by and which otherwise would be payable under the Company;
(iv) an amount equal to three (3) times the sum terms of such nonqualified deferred compensation plan on account of the Executive’s Annual Base Salary and termination of employment, unless payment of such amounts would constitute an invalid acceleration of the time or schedule of a payment under Code Section 409A; and
(iii) all amounts payable to the Executive under the terms of the Annual Bonus.Cash Incentive Plan and Long-Term Performance Plan to the extent that such amounts have not yet been paid, unless payment of such amounts would constitute an invalid acceleration of the time or schedule of a payment under Code Section 409A.
(b) The Company shall pay to the Executive by no later than the Payment Date a lump sum cash payment equal to [insert either three or four] times the Executive’s Highest Annual Base Salary.
(c) On the Termination Date, the Executive shall become fully vested in any and all stock incentive awards granted to the Executive under pursuant to any plan Plan or otherwise which have not become exercisable as of the date of Termination Date. On the Change in Control and Termination Date, all stock options (including options vested as of the Change in ControlControl Date) shall remain exercisable until the applicable last date on which the option expiration datewas scheduled to expire, without regard to whether termination of the Executive’s employment would have provided for a shorter exercise period following such termination of employment; provided, however, that the exercise period of an option shall be extended only to the latest date on which it may be exercised without subjecting such option to the provisions of Code Section 409A or resulting in treatment of the option as a new grant on the date of extension. All forfeiture conditions that as of a Change in Control the Termination Date are applicable to any stock option, deferred stock unitrestricted stock, restricted stock units, stock appreciation rights, performance grants or restricted share units awarded other incentive awards granted to the Executive by the Company pursuant to any Plan or otherwise shall lapse immediately.
(c) Except as provided in subsections (d) and (e)During the Benefit Continuation Period, for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family dependents will continue to be covered by all Welfare Plans in which he or his dependents were participating immediately prior to the Termination Date (the “Welfare Continuance Benefit”). The Company shall pay all the COBRA premium cost otherwise due from Executive for continued participation of the Executive and dependents in the Company’s medical welfare benefit plan. The Company shall pay all or that portion of the premium costs of the Welfare Continuance Benefit for the Executive and dependents under Welfare Plans other than the Company’s medical welfare benefit plan on the same basis as applicable under such Welfare Plans immediately preceding the Termination Date, and the Executive will pay additional premium costs (if any) as applicable immediately preceding the Termination Date. In determining the level of benefits (includingto which the Executive is entitled under any of the Welfare Plans, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided the Executive shall be deemed to be paid during the Benefit Continuation Period annual compensation no less than the Annual Base Salary in effect prior to the Termination Date. If participation or continued participation under any one or more of the Welfare Plans included in the Welfare Continuance Benefit is not possible under the most favorable terms of the Welfare Plan or any provision of law or if such participation or continued participation would create an adverse tax consequence for the Executive or the Company due to such participation, the Company will provide substantially identical benefits directly or through one or more insurance arrangements. The Welfare Continuance Benefit as to a Welfare Plan will cease if and when the Executive has obtained coverage under one or more welfare benefit plans of the Company applicable with respect a subsequent employer and such plan provides coverage to the Executive and his family during either dependents of the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage same type as provided under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plansWelfare Plan.
(de) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights To the extent that the Executive may have pursuant would not otherwise be entitled to applicable law, including, without limitation, continuation coverage required by Section 4980B receive an allocation of Employer Contribution under the Profit Sharing Plan or Benefit Restoration Plan for the Plan Year in which the Termination Date occurs and for the Plan Years including all or a portion of the Code (“COBRA Benefit Continuation Coverage”). If the Executive elects to receive COBRA Continuation CoveragePeriod, the Company shall pay all to the Executive on the Payment Date a lump sum cash payment equal to the equivalent of the required premiums for Employer Contribution that the Executive and/or Company would have allocated to the Executive’s family account in each of the Profit Sharing Plan and Benefit Restoration Plan as if the Executive had satisfied all requirements under the Profit Sharing Plan and Benefit Restoration Plan to be eligible to receive an allocation of the Employer Contribution for the 12 months following Plan Year in which the Termination Date occurs, and each Plan Year or pro-rata portion thereof during the Benefit Continuation Period. For purposes of calculating this payment:
(i) the eligible compensation of the Executive shall be deemed to be an amount equal to the greatest of (i) twice the Executive’s Highest Annual Base Salary, (ii) the eligible compensation used to calculate the Employer Contribution to the Executive’s account for the last Plan Year prior to the Plan Year in which the Termination Date.Date occurs or (iii) the eligible compensation earned by the Executive during the Plan Year to the Termination Date including the amounts described in Section 5.1 (a) (b) and (c); and
(eii) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease be deemed to participate have deferred the maximum amount of compensation permitted by law or terms of the plan which would result in a credit to the CompanyExecutive’s group term life insurance.account of the maximum amount of Employer Contribution in both the Profit Sharing Plan and Benefit Restoration Plan of the maximum Employer Contribution; and
(fiii) The Company shall, at its sole expense, the Employer Contribution calculated as incurred, pay on behalf a percentage of Executive up the eligible compensation shall be deemed to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by be the Executive to provide outplacement service greater of the Employer Contribution for one year after the Termination Date.
(g) To the extent that immediately last Plan Year prior to the Change Plan Year in Control, which the Executive has been on Termination Date occurs or the payroll of, and participated in average of the incentive or employee benefit plans of, a subsidiary of Cornerstone, Employer Contribution for the references to the Company last five Plan Years. Capitalized terms contained in this subsection which are not otherwise defined in this Agreement referring to benefits to which shall have the Executive may be entitled shall be read to refer meaning assigned to such subsidiaryterms under the Profit Sharing Plan or Benefit Restoration Plan.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 5.2 If by the Company for Cause Cause, Disability or Death or if by the Executive other for Other than for Good Reasona Qualifying Termination. If, during the Employment Period, the Company terminates the Executive’s employment for Cause Cause, Disability or if the death of the Executive or, in the event the Executive terminates employment for any reason other than for Good Reason (including death or disability)a Qualifying Termination, this Agreement shall terminate without further obligation by the CompanyCompany to the Executive, other than than:
(a) the obligation to immediately pay the Executive the amounts described in Section 5.1(a), and
(b) the obligation, to the extent required by law or regulation or pursuant to the terms of the Plans, to provide benefits under the terms of any of the Plans, Welfare Plans and other employee benefit programs in which the Executive in cash the Executive’s unpaid salary through was participating immediately prior to the Termination Date, plus any accrued paid time off, in each case pursuant to the extent not previously paidSections 3.2(c) through (e).
Appears in 1 contract
Samples: Executive Employment Continuity Agreement (Commercial Metals Co)
Obligations of the Company Upon Termination. 4.1 If (a) Upon termination of employment by either the Executive or the Company for any reason, the Executive shall be entitled to be paid (i) any earned but unpaid Base Salary, (ii) any Bonus earned but unpaid from the prior fiscal year, (iii) reimbursement for any expenses incurred by him but unpaid as of the date of termination, and (iv) any earned but unused vacation due under the Company’s Employee Handbook (revised June 2004), subject to the provisions of that Handbook. These amounts shall be payable in cash within 30 days of such termination date.
(b) Upon the Company’s termination of the Executive’s employment for any reason other than for Cause in accordance with section 5(e), or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate upon the Executive’s employment other than for Cause, or if the Executive shall terminate termination of his employment for Good Reason, and in consideration for the Company’s obligations Confidentiality and Non-Disclosure, Non-Competition and Non-Solicitation provisions hereof, the Executive will be entitled to the Executive shall be payment set forth in paragraph 6(a) above and, in addition, to the continuation of his Base Salary for a period of twelve (12) months following such termination, payable as follows:
(a) and when his Base Salary otherwise would have been payable. The Company shall, within thirty business days of the Termination Date, shall also pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum cost of the Executive’s Annual Base Salary COBRA premiums for a period of twelve (12) months from the date of termination or until the Executive is fully covered under another employer’s group health plan, whichever date occurs first, and the Annual Bonus.
(b) The if Executive shall does become fully vested in any and all stock incentive awards granted covered within that twelve month period, he shall promptly notify the Company of that fact. In the event payments are payable to Executive pursuant to this Section 6(b), no severance benefits shall be payable to the Executive under any severance plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive maintained by the Company shall lapse immediatelyCompany.
(c) Except as provided in subsections (d) and (e), for a one year period following Executive’s entitlement to any compensation under this Section also is subject to the Executive’s termination execution of employmenta release of all claims against the Company; provided, the Company shall arrange to provide the Executive and his family welfare benefits (includinghowever, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the that (i) 90-day period immediately preceding such release does not impose any new obligations or restrictions on the Change in Control, or Executive not encompassed within this Agreement and (ii) such release is reciprocal, containing a release of all claims that the 90-day period immediately preceding Company may have against the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death or by Disability; By the Executive for Good Reason; Non-Renewal. If Subject to Section 5 of this Agreement, if, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, death or Disability, or if the Executive shall terminate employment for resigns with Good Reason, or if the Executive’s employment ceases at the end of the Initial Employment Period or an Extension Period following either the Executive or the Company giving the other a notice of nonrenewal in accordance with Section 1(b), the Executive will be entitled to the following benefits; provided that the benefits described in Sections 4(a)(ii), (iii), (iv), (v) and (vii) shall only be paid or provided if the Executive executes a waiver and release prepared by the Company’s obligations , which releases the Company and its affiliates, directors, officers and other customary persons from any claim or liability arising out of or related to the Executive’s employment with or termination of employment from the Company or any of its affiliates (except for amounts to which the Executive shall be as follows:
is legally entitled pursuant to employee benefit plans, the Executive’s right to enforce this Agreement and rights to insurance coverage or indemnification) (a) The Company shallthe “Release”), which Release is not revoked within thirty business days of the Termination Datetime period provided therein, pay and the executed Release is delivered to the Executive a single lump sum cash payment equal to Company within forty-five (45) days following the sum Date of the following amountsTermination:
(i) a lump sum payment within sixty (60) days following the Date of Termination equal to the aggregate of the following amounts: (A) the Executive’s Annual Base Salary and vacation pay accrued through the Date of Termination; (B) any Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election); and (C) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination and were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (A), (B), and (C), to the extent not previously paid, paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Controlclauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”);
(ii) an amount a payment equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the target Annual Bonus, in each case determined as the greater of that in effect immediately prior to the Date of Termination or that in effect immediately prior to the Effective Date, payable in a lump sum in cash on the sixtieth (60th) day following the Date of Termination;
(iii) An Annual Bonus for the Fiscal Year in which the Date of Termination occurs, equal to (A) the amount which the Executive would have earned had he remained employed through the payment date of such Annual Bonus, based on actual achievement of the applicable performance metrics for the applicable Fiscal year, and (B) such amount then prorated based on the number of days Executive was employed during the Fiscal Year in the which the Date of Termination occurs, paid at the same time as would have been the case had such termination not occurred, but in no event later than March 15 of the fiscal year following the fiscal year in which the Covered Termination occurs (the “Pro-Rata Bonus”).
(biv) The Executive shall become a fully vested and non-forfeitable interest in the Executive’s account balance in The Xxxxxxx & Xxxxxx Company Defined Contribution Restoration Plan and any successor thereto maintained by the Company, The Xxxxxxx & Xxxxxx Company Supplemental Executive Retirement Plan and any successor thereto maintained by the Company, and any other supplemental executive retirement plan maintained by B&W or the Company, and payable in accordance with the terms thereof;
(v) notwithstanding anything contained in the applicable equity plan or any individual grant agreements issued thereunder applicable to the Executive, but in all stock incentive cases subject to any adjustments which may be made to equity compensation awards generally as of the Effective Date as a result of the Restructuring Transaction, upon the Date of Termination :
(A) all unvested equity compensation awards granted by B&W to the Executive under on or prior to December 31, 2014 that the Executive holds as of immediately prior to the Date of Termination (“Pre-2015 Equity Awards”), shall vest in full, and, in the case of restricted stock or restricted stock units shall be settled within sixty (60) days after the Date of Termination; provided that (i) any plan or otherwise such B&W equity compensation award which have is performance-based will be settled only with respect to the number of shares earned based on achievement of actual performance through the applicable performance period, which settlement will occur at the same time as if the termination of employment had not become exercisable occurred, (ii) any such B&W equity compensation award which is subject to Section 409A of the Code will be paid on a date earlier than is provided in the applicable award agreement to the extent necessary to avoid the imposition of tax penalties pursuant to Code Section 409A and (iii) for the avoidance of doubt, any Pre-2015 Equity Award that is a vested stock option that Executive holds as of the date of the Change in Control and all stock options his Covered Termination (including options vested for this purpose any such stock option which vests as a result of the Change in Controlthis provision) shall remain exercisable until through the applicable option expiration date. All forfeiture conditions of the original term of such stock option; and
(B) other than as described in the immediately following clause (C), all unvested equity compensation awards granted by B&W or the Company to the Executive on or after January 1, 2015 that the Executive holds as of immediately prior to the Date of Termination shall vest on a Change pro-rata basis, with the portion of such equity awards that shall become vested hereunder equal to the product of (x) a fraction, the numerator of which is equal to the number of days in Control are the performance or service period applicable to any such award during which the Executive was employed by the Company (including B&W as its predecessor entity, as applicable), and the denominator of which is the total number of days in such performance or service period and (y) the total number of shares of common stock option, deferred stock unit, subject to such performance- or service-vesting award to which the Executive would have become entitled to under such award; and in the case of such equity awards which are restricted stock or restricted share stock units awarded shall be settled within sixty (60) days after the Date of Termination; provided that (i) any such B&W equity compensation award which is performance-based will be settled only with respect to the pro-rata number of shares earned based on achievement of actual performance through the applicable performance period, which settlement will occur at the same time as if the termination of employment had not occurred, and (ii) any such B&W equity compensation award which is subject to Section 409A of the Code will be paid on a date earlier than is provided in the applicable award agreement to the extent necessary to avoid the imposition of tax penalties pursuant to Code Section 409A; and
(C) notwithstanding anything set forth above or in the Restructuring Transaction Retention Agreement by and among the Parties, dated as of November 5, 2014 (the “Retention Agreement”), the “Retention Incentive Grant” (as defined in the Retention Agreement), to the extent not vested on the Date of Termination, shall vest in full and be settled within sixty (60) days after the Date of Termination; and
(D) any equity compensation award issued by the Company to the Executive in respect of a B&W equity compensation award held by the Company Executive immediately prior to the completion of the Restructuring Transaction and as a result of the Restructuring Transaction, shall lapse immediatelybecome vested to the same extent and in the same manner as the corresponding B&W equity compensation award pursuant to each of the immediately preceding clauses (A), (B) and (C), as applicable; and
(E) the benefits described in the immediately preceding clauses (A), (B), (C) and (D) shall be hereinafter referred to as the “Equity Acceleration Benefits”.
(cvi) Except as provided in subsections (d) and (e), for a one year period following to the Executive’s termination of employmentextent not theretofore paid or provided, the Company shall arrange timely pay or provide to provide 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 through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
(vii) a payment equal to three (3) times the full annual cost of coverage for medical, dental and vision benefits covering Executive and his family welfare benefits covered dependents for the year in which the Date of Termination occurs, payable in a lump sum on the sixtieth (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits60th) which are at least day following the Date of Termination (such payment shall hereinafter be referred to as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date“Health Care Benefit”). Notwithstanding the foregoingforegoing provisions of Section 4, if in the event that the Executive obtains comparable coverage under any welfare benefits provided by another employer, then is a “specified employee” (within the amount meaning of coverage required Section 409A of the Code and with such classification to be provided determined in accordance with the methodology established by the Company hereunder applicable employer), amounts and benefits (other than the Accrued Obligations) that are deferred compensation (within the meaning of Section 409A of the Code) that would otherwise be payable or provided under Section 4(a)(i) during the six (6)-month period immediately following the Date of Termination shall instead be reduced by paid, with interest on any delayed cash payment at the amount of coverage applicable federal rate provided by such other employer’s welfare benefit plans.
(dfor in Section 7872(f)(2)(A) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageInterest”). If , on the Executive elects to receive COBRA Continuation Coveragefirst business day which is more than six (6) months following the Date of Termination, the Company shall pay all of the required premiums for the Executive and/or or the Executive’s family earlier death or “disability” (defined, for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policythis purpose, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment accordance with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement Section 409A of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1Code).
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Employment Agreement (Babcock & Wilcox Enterprises, Inc.)
Obligations of the Company Upon Termination. 4.1 (a) If by the Company other than for Cause or by the Executive for Good Reason. If Employee's employment is terminated during the Employment PeriodPeriod by reason of the Employee's death, the Company this Agreement shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s without further obligations to the Executive Employee's legal representatives under this Agreement, other than those obligations specifically provided for in this Agreement (which shall be paid in accordance with their terms) and obligations accrued or earned and vested (if applicable) by the Employee as follows:
(a) The Company shall, within thirty business days of the Termination DateDate of Termination, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
which shall include for this purpose (i) to the extent not previously paid, the salary and any accrued paid time off Employee's full Base Salary through the date Date of Termination at the rate in effect on the Date of Termination or, if higher, at the highest rate in effect at any time from the start of the Change in Control;
90-day period preceding the Effective Date through the Date of Termination (the "Highest Base Salary"), (ii) an amount equal to the product of (iA) the annual bonus Annual Bonus paid, payable to, or deferred (pursuant to Section 3 of the Employment Agreement) by the Employee for the calendar last full fiscal year immediately preceding ending before the calendar year in Date of Termination with respect to which the Change in Control occurs an Annual Bonus was awarded, multiplied by (iiB) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
365 and (iii) all amounts any compensation previously deferred deferred, pursuant to this Agreement, by the Executive under any nonqualified deferred compensation plan sponsored by the Company, Employee (together with any accrued earnings interest thereon, ) and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary Company and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have accrued vacation pay not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive yet paid by the Company shall lapse immediately.
(c) Except as provided such amounts specified in subsections clauses (di), (ii) and (eiii) are hereinafter referred to as "Accrued Obligations"). All such Accrued Obligations shall be paid to the Employee's estate or beneficiary, for as applicable, in a one year period following lump sum in cash within 30 days of the Executive’s termination Date of employmentTermination. Any and all compensation previously deferred by the Employee pursuant to the terms of both the Employment Agreement and the Deferred Compensation Agreement shall be paid in accordance with the terms and conditions of such agreements. Anything in this Agreement to the contrary notwithstanding, the Company Employee's family shall arrange be entitled to provide the Executive and his family welfare receive benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under equal to: (A) the most favorable welfare plans benefits provided by the Company and any of its subsidiaries to surviving families of employees of the Company applicable and such subsidiaries under such plans, programs, practices and policies relating to family death benefits, if any, in accordance with respect to the Executive most favorable plans, programs, practices and his family policies of the Company and its subsidiaries in effect at any time during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Effective Date. Notwithstanding ; or (B) if more favorable to the foregoingEmployee and/or the Employee's family, if as in effect on the Executive obtains comparable coverage under any welfare benefits provided by another employer, then date of the amount Employee's death with respect to other key employees of coverage required to be provided by the Company hereunder shall be reduced by and its subsidiaries and their families; or (C) if more favorable to the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be Employee, in addition to and not whole or in lieu of any post-termination continuation coverage or conversion rights part, in accordance with the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B terms of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination DateEmployment Agreement.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shallTERMINATION BY THE COMPANY (OTHER THAN TERMINATIONS FOR CAUSE, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (eDEATH OR DISABILITY), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”)OR TERMINATION BY THE EXECUTIVE FOR GOOD REASON. If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for any reason other than for Cause (other than a termination for Disability or if death), or the Executive terminates her employment other than for Good Reason (including death or disability)Reason, this Agreement then, except for any termination to which Section 5(d) applies, the Company shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in (i) a cash payment equal to 1.5 times the sum of (A) the Executive’s Annual Base Salary immediately prior to the Date of Termination and (B) the greater of (1) the annual bonus earned by the Executive for the last completed fiscal year prior to the fiscal year in which the Date of Termination occurs and (2) the annual bonus the Executive would have earned for the fiscal year in which the Date of Termination occurs absent such termination (which amount shall be based upon the Company’s (and if applicable the Executive’s) actual performance against target (expressed as a percentage of achievement of targeted performance) applicable to the portion of the performance period during which the Executive was employed, with such percentage level of achievement annualized for the full fiscal year) (the greater of such amounts being referred to hereafter as the “Applicable Bonus Amount”); and (ii) any unpaid salary through amounts of the Executive’s Annual Base Salary for periods prior to the Date of Termination Date, plus any accrued paid time offand earned annual bonuses for completed fiscal years prior to the Date of Termination. The payment described in clause (i) of the preceding sentence shall be made ratably over the two-year period following the Date of Termination, in each case accordance with the Company’s normal payroll practices and the payments described in clause (ii) of the preceding sentence shall be made within 30 days of the Date of Termination. The Company shall also provide to the extent Executive (and, as applicable, her eligible dependents), in the event of such a termination continued participation at the Company’s expense in the Company’s medical, dental, prescription and vision care insurance plans (or substantially equivalent coverage under an alternative arrangement) for six months following the Date of Termination (or, if earlier, until the date the Executive obtains alternative coverage from a subsequent employer) following which, if no such alternative coverage has been obtained, the Executive will be entitled to elect continuation coverage (“COBRA”) in accordance with the provisions of Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), which COBRA coverage period shall begin at the close of the period of such continued participation. For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated within the thirteen month period following a Change in Control and during the Term by the Company without Cause (and shall be governed by Section 5(d)), if the Executive’s employment is terminated by the Company without Cause either (i) during the 120 day period prior to the execution of an agreement, the consummation of which would result in a Change in Control or (ii) following the execution of an agreement, the consummation of which would result in a Change in Control and such termination is effective at the time, or during the pendency, of such Change in Control (in either case whether or not previously paidsuch Change in Control actually occurs).
Appears in 1 contract
Samples: Employment Agreement (Vertis Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the (a) Executive shall be a participant in the Southern National Bancorp of Virginia, Inc. Executive Severance Plan as follows:
(a) The Company shall, within thirty business days in effect as of the Termination Effective Date (the “Severance Plan”), notwithstanding anything to the contrary in the Severance Plan, and, in the event of Executive’s qualifying termination under the Severance Plan, Executive shall be eligible to receive severance benefits pursuant to the Severance Plan as in effect as of the Effective Date, pay subject to the terms and conditions thereof, in lieu of any severance benefits under this Agreement. Without limiting the foregoing, in the event of Executive’s qualifying termination under the Severance Plan, Executive a single lump sum cash payment equal shall also be entitled to the sum of following additional benefits (collectively, the following amounts:“Additional Severance Benefits”):
(i) Executive’s unvested stock options and restricted shares outstanding on the Date of Termination shall become fully vested and, in the case of stock options, exercisable, on the Date of Termination and shall otherwise remain subject to the extent not previously paid, the salary terms and any accrued paid time off through the date conditions of the Change in Controlequity plan pursuant to which they were granted and the award agreements evidencing the grant thereof;
(ii) an amount equal Executive shall continue to have the product use of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed personal assistant provided by the Company during for two (2) years following the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;with such personal assistant having a base salary at a rate not to exceed $60,000; and
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to Executive’s “Normal Retirement Benefit” under the Executive under any plan or otherwise which have not become exercisable Supplemental Retirement Plan Agreement entered into effective as of the date 2nd day of April 2018 by and between Sonabank, a wholly-owned subsidiary of the Change in Control Company, and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, the Company shall be obligated to provide the Additional Severance Benefits only if (A) within forty-five (45) days after the date of termination Executive obtains comparable coverage under any welfare benefits provided by another employershall have executed a full release of claims/covenant not to sxx agreement substantially in the form attached as Exhibit A to the Severance Plan (the “Release Agreement”) and such Release Agreement shall not have been revoked within the revocation period specified in the Release Agreement, and (B) Executive fully complies with the obligations set forth in Section 6 hereof. For the avoidance of doubt, if Executive does not comply with the obligations set forth in Section 6 hereof, then the amount any obligation of coverage required to be provided by the Company hereunder to provide the Additional Severance Benefits shall be reduced by the amount of coverage provided by such other employercease immediately upon Executive’s welfare benefit plansbreach thereof.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(eb) If during the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Term Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by Executive for any reason (other than a “Constructive Discharge” following a Change in Control, as such terms and conditions are defined in the Severance Plan), or in the event of Executive’s death, then the Company shall have no further obligations to Executive or Executive’s legal representatives under this Agreement, other than for Good Reason. Ifpayment of Accrued Salary, during which shall be paid to Executive or Executive’s estate or beneficiary, as applicable, in a lump sum in cash within thirty (30) days after the Employment Period, the Company terminates the date of termination.
(c) If Executive’s employment for Cause terminates following the expiration of the Term, then the Company shall have no further obligations to Executive or if the Executive terminates employment Executive’s legal representatives under this Agreement, other than for Good Reason (including death or disability)payment of Accrued Salary, this Agreement which shall terminate without further obligation by the Company, other than the obligation be paid to pay to the Executive in a lump sum in cash within thirty (30) days after the date of termination.
(f) Any termination of Executive’s unpaid salary through employment shall not in and of itself affect Executive’s ability to continue as a director of the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidCompany and/or Sonabank.
Appears in 1 contract
Samples: Employment Agreement (Southern National Bancorp of Virginia Inc)
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other than Other Than for Cause or Disability; Termination by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment PeriodTerm of Employment, the Company terminates the Executive’s 's employment other than for Cause or if Disability, or the Executive terminates employment other than for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then and, with respect to payments and benefits described in clauses (including death or disabilityi)(B), this Agreement shall terminate without further obligation by (i)(C) and (ii) below, only if the Executive executes a release of all employment-related claims against the Company and its affiliates in a form satisfactory to the Company, other than :
(i) the obligation to Company shall pay to the Executive in cash the following amounts:
(A) the sum of (1) the Executive’s unpaid salary 's Base Salary through the Termination Date, plus any accrued paid time off, in each case date of termination to the extent not theretofore paid, (2) any annual bonus payable under Section 5(b), which has been earned but not theretofore paid, (3) any accrued vacation pay to the extent not theretofore paid, and (4) unless the Executive has elected a different payout date in a prior deferral election, any compensation previously paiddeferred by the Executive (together with any accrued interest or earnings thereon) to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (4) shall be hereinafter referred to as the "Accrued Obligations");
(B) the amount equal to the product of (x) the Executive's annual Base Salary in effect as of the date of termination, and (y) the number of whole and fractional years remaining in the Term of Employment as of the date of termination; and
(C) the amount equal to the product of (x) the amount of the target bonus applicable to the Executive under the MIP in respect of the Company's fiscal year in which the date of termination occurs, and (y) the number of years remaining in the Term of Employment as of the date of termination (with any fractional years treated as whole years).
(ii) all outstanding unvested awards under the Stock Bonus Plan, the Omnibus Plan and any other equity compensation plans of the Company shall become immediately vested in full and, in the case of any stock options or similar awards requiring exercise by the holder, shall become immediately exercisable;
(iii) for the remaining Term of Employment, the Company shall continue medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans described in Section 5 of this Agreement if the Executive's employment had not been terminated, which coverage shall be in addition to and shall not reduce any continuation coverage required under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); provided, however, that such benefits shall cease if the Executive becomes eligible to receive medical or dental benefits under the plan of another employer; and
(iv) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company for other than for Cause or by the Executive for Good Reason. If during the Employment Period, Executive's employment is terminated by the Company shall terminate the Executive’s employment for any reasons other than for Cause, Cause or if Disability or by the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The Company shallshall pay to the Executive, within thirty business days of the Date of Termination, any earned but unpaid Annual Base Salary;
(ii) The Company shall pay to the Executive, within thirty business days of the Date of Termination, a prorated Annual Bonus based on (A) the target Annual Bonus opportunity in the year in which the Date of Termination Dateoccurs or the prior year if no target Annual Bonus opportunity has yet been determined (disregarding any reduction in target Annual Bonus opportunity that was the basis for a termination by the Executive for Good Reason) and (B) the fraction of the year the Executive was employed.
(iii) The Company shall pay to the Executive, within thirty business days of the Date of Termination, a lump-sum payment equal to the sum of 100% of (x) the Executive's Annual Base Salary in effect immediately prior to the Date of Termination (disregarding any reduction in Annual Base Salary that was the basis for a. termination by the Executive for Good Reason), and (y) the Executive's target Annual Bonus opportunity for the year in which the Date of Termination occurs or the prior year if no target Annual Bonus opportunity has yet been determined (disregarding any reduction in target Annual Bonus opportunity that was the basis for a termination by the Executive for Good Reason);
(iv) For a one (1) year period after the Date of Termination, the Company will arrange to provide the Executive (and any covered dependents), without cost to the Executive, with life, accident and health insurance benefits substantially similar to those the Executive and any covered dependents were receiving immediately prior to the Notice of Termination, except for any such benefits that were waived by the Executive in writing. If the Company arranges to provide the Executive and covered dependents with life, accident and health insurance benefits, those benefits will be reduced to the extent comparable benefits are actually received by, or made available to, the Executive by a subsequent employer without cost during the one (1) year period following the Executive's Date of Termination. The Executive must report to the Company any such benefits that he actually receives or are made available. In lieu of the benefits described in this subsection 5(a)(iv), the Company, in its sole discretion, may elect to pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued total premiums that would have been paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by to provide such benefits to the Executive under any nonqualified deferred compensation plan sponsored by (determined based on the Company, together with any accrued earnings thereon, and not yet premiums paid by the Company;Company immediately prior to the Date of Termination). Nothing in this subsection 5(a)(iv) will affect the Executive's right to elect COBRA continuation coverage in accordance with applicable law or extend the COBRA. continuation coverage period; and
(ivv) an amount equal to The Executive shall have at least three (3) times months (or until the sum last day of the stock option term; whichever occurs first) to exercise any then vested outstanding stock options and all of the Executive’s Annual Base Salary and 's other outstanding equity-based awards shall become fully vested on the Annual BonusDate of Termination.
(b) The Executive shall become fully vested Termination in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Connection with a Change in Control.
(i) shall remain exercisable until if, in anticipation of or within the applicable option expiration date. All forfeiture conditions that as of 24 month period following a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (edefined below), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s 's employment with the Company as a common law employee is terminated by the Company for any reason other than for Cause or Disability or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving receive the payments and benefits provided described in this Section 4.1subsection 5(a), except that the payment described in section 5(a)(iii) shall be equal to 100% of the amounts described in (x) and (y) thereof, the continuation period described in section 5(a)(iv) shall be one (1) years, regardless of how long the Executive has been employed, and all of the Executive's outstanding equity-based awards shall become fully vested on the Date of Termination.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period(ii) For purposes of this Agreement, the Company terminates term "Change in Control" means the Executive’s employment for Cause or if occurrence of any of the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.following events:
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other Other than for Good Reason. If, during the Employment Period, If the Company terminates the Executive’s employment for Cause or if the Executive terminates resigns his employment other than for Good Reason, Executive shall be entitled only to the payment of (i) the Accrued Obligation and (ii) unreimbursed business expenses.
(b) Termination by Executive for Good Reason (including death or disability)by the Company Other Than for Cause, Death or Permanent Disability. If, at any time other than during a Protected Period, Executive terminates his employment under this Agreement shall terminate without further obligation by during the Company, Term for Good Reason or the Company terminates Executive’s employment during the Term other than for Cause or Permanent Disability, and such termination is not due to Executive’s death, then Executive shall be entitled to receive (i) payment of the obligation to pay Accrued Obligation and any unreimbursed business expenses and (ii) subject to the Executive satisfaction of any applicable performance targets, as described in cash the Section 3.3, any of Executive’s unpaid salary Bonuses with respect to a previous calendar year completed prior to the Date of Termination (without regard to any requirement that Executive remain employed through the Termination Datedate of determination of such Bonuses). In addition, plus any accrued paid time off, in each case subject to Executive’s (x) delivery to the extent Company by the Release Expiration Date (and non-revocation in any time provided to do so) of an executed release of claims against the Company and its affiliates in substantially the form attached hereto as Exhibit “B” (the “Release”) and (y) compliance with Articles V, VI, and VII, Executive shall also be entitled to receive:
(1) a payment of the Annual Bonus for the calendar year during which Executive’s employment is terminated, determined based on actual results and paid at the same time such bonus is paid to active executives;
(2) any and all long-term equity compensation awards granted to Executive by the Company or its Subsidiaries under any plan not previously paidvested shall become fully vested, without pro-ration, with any unexercised options as of the Date of Termination remaining exercisable for the full term thereof; provided, however, that any award that is intended to be performance-based compensation under Section 162(m) of the Code shall not become vested unless and until the applicable performance goal for such award for purposes of Section 162(m) of the Code is attained and shall be paid based on the actual results of such applicable performance goal;
(3) a lump sum payment of an amount equal to two (2) times the sum of (A) the annualized rate of Executive’s Base Salary as in effect on the Date of Termination and (B) Executive’s target Annual Bonus for the calendar year in which the Date of Termination occurs; and
(4) a lump sum payment of an amount equal to all Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), premiums that would be payable during the period beginning on the Date of Termination and ending on the date that is 18 months after the Date of Termination, assuming Executive and his dependents who were enrolled in the Company’s group health plans as of the Date of Termination elected continuation coverage under the Company’s group health plans as in effect, and at the applicable COBRA rates, as of the Date of Termination, without regard to whether Executive and his dependents actually elected such coverage or whether actual COBRA coverage is applicable for the above-referenced time period.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If (a) Prior to a Change in Control: Termination by Employee for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control, the Company shall terminate Employee’s employment other than for Poor Performance, Cause or Disability, or Employee shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Employee executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company shall pay to Employee in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Employee’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Employee becomes employed with a subsequent employer, but in no event to exceed 18 months from the Date of Termination (the “Normal Severance Period”), the Company will continue to pay Employee an amount equal to her monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, the Company shall continue benefits to Employee and/or Employee’s family at least equal to those which would have been provided to them in accordance with the Welfare Plans described in Section 5(c) of this Agreement if Employee’s employment had not been terminated; provided, however that the Company’s obligation to provide such benefits shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iv) not later than 30 days after the Date of Termination, Employee will be paid a bonus for the year in which the Date of Termination occurs in an amount equal to the greater of (1) 50% of her Bonus Opportunity (as defined in Section 5(b)(i)) for such year, or (2) 100% of her Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to her year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Employee’s bonus plan for such year; and
(v) all grants of restricted stock of the Company (“Restricted Stock”) held by Employee as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Employee’s options to acquire Common Stock of the Company (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Employee remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Employee’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company shall timely pay or provide to Employee any other amounts or benefits required to be paid or provided or which Employee is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
(b) Prior to a Change in Control: Termination by the Company for Poor Performance. If, prior to the occurrence of a Change in Control, the Company shall terminate Employee’s employment for Poor Performance, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Employee executes the Release):
(i) the Company shall pay to Employee the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; and
(ii) for the shorter of 12 months after the Date of Termination or until Employee becomes employed with a subsequent employer (the “Poor Performance Severance Period”), the Company will continue to pay Employee an amount equal to her monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, the Company shall continue benefits to Employee and/or Employee’s family at least equal to those which would have been provided to them in accordance with the Welfare Plans described in Section 5(c) of this Agreement if Employee’s employment had not been terminated; provided, however that the Company’s obligation to provide such benefits shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iv) not later than 30 days after the Date of Termination, Employee will be paid a bonus for the year in which the Date of Termination occurs in an amount equal to 100% of her Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to her year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Employee’s bonus plan for such year; and
(v) all grants of Restricted Stock held by Employee as of the Date of Termination that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Employee remained employed during such period will become immediately vested as of the Date of Termination; and
(vi) all of Employee’s Options that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Employee remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Employee’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi) above) shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company shall timely pay or provide to Employee her Other Benefits.
(c) After or in Connection with a Change in Control: Termination by Employee for Good Reason; Termination by the Company Other Than for Cause or Disability. If there occurs a Change in Control and, within 36 months following such Change in Control (or if Employee can reasonably show that such termination by the Company was in anticipation of the Change in Control), the Company shall terminate Employee’s employment other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for CauseDisability, or if the Executive Employee shall terminate employment for Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Employee executes the Release):
(i) the Company (or its successor) shall pay to Employee the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination; and
(ii) for 24 months after the Date of Termination (the “Change in Control Severance Period”), the Company (or its successor) will, as a severance benefit, continue to pay Employee an amount equal to her monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s obligations payroll practices from time to time; provided, however that the Company’s obligation to make or continue such payments shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the Executive shall be as follows:satisfaction of the Board within 10 days of notice of such violation; and
(aiii) The during the Change in Control Severance Period, the Company shallshall continue benefits to Employee and/or Employee’s family at least equal to those which would have been provided to them in accordance with the Welfare Plans described in Section 5(c) of this Agreement if Employee’s employment had not been terminated; provided, however that the Company’s obligation to provide such benefits shall cease if Employee violates any of the Restrictive Covenants (as defined in Section 13(a) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within thirty business 10 days of notice of such violation; and
(iv) not later than 30 days after the Date of Termination, Employee will be paid a bonus for the year in which the Date of Termination Dateoccurs in an amount equal to 100% of her Bonus Opportunity (as defined in Section 5(b)(i)); and
(v) all grants of Restricted Stock held by Employee as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Employee’s Options held by Employee as of the Date of Termination will become immediately vested and exercisable as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, pay all of Employee’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Executive a single lump sum cash payment equal to Section 8(c)(vi) above) shall remain exercisable through the sum earlier of (A) the original expiration date of the Option, or (B) the 90th day following amounts:the end of the Change in Control Severance Period; and
(iviii) to the extent not previously paid, the salary and any accrued theretofore paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentprovided, the Company shall arrange timely pay or provide to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plansEmployee her Other Benefits.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Employment Agreement
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive (a) Termination for Good ReasonReason or for Reasons Other Than for Cause, Death or Incapacity. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for Cause, Cause or if Incapacity or the Executive shall terminate his or her employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
(iA) the sum of (1) the Executive's currently effective Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii2) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by currently effective Annual Bonus and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
365 and (iii3) all amounts any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation pay, in each case to the extent not previously paidtheretofore 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) his or her Annual Bonus;
(ii) in addition to the retirement benefits to which the Executive is entitled under the Company's Pension-Retirement Plan and Pension Equalization Plan or any successor plans thereto (collectively, the "Pension Plans"), the Company shall pay the Executive the excess of (x) the retirement pension which the Executive would have accrued under the terms of the Pension Plans (without regard to any amendment to the Pension Plans made subsequent to a Change in Control and on or prior to the Date of Termination, which amendment adversely affects in any manner the computation of retirement benefits thereunder), determined as if the Executive were fully vested thereunder and had accumulated (after the Date of Termination) thirty-six additional months of Benefit Accrual Service credit (as such term is defined in the Pension Plans) thereunder and treating the amounts paid under clause (i)(B) of this Section 5(a) as compensation paid during a thirty-six month period for purposes of calculating Average Salary and benefits under the Pension Plans, over (y) the retirement pension which the Executive had then accrued pursuant to the provisions of the Pension Plans, such pension benefits to thereafter be paid and funded in accordance with the terms of the Pension Plans and the Trust Agreement dated as of September 16, 1994, by and between the Company and The Chase Manhattan Bank (N.A.), as Trustee;
(iii) for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with benefit plans, programs, practices and policies, including, without limitation, those described in Section 3(b)(iii) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical benefits under another employer-provided plan, the medical benefits shall be secondary to those provided under such other plan during such applicable period of eligibility and further provided, however, that the rights of the Executive and/or the Executive's family under Section 4980B(f) of the Code shall commence at the end of such three-year period;
(iv) the Company shall, at its sole expense as incurred, provide the Executive with reasonable outplacement services for a period of up to one year from the Date of Termination, the provider of which shall be selected by the Executive in his or her sole discretion;
(v) the Company shall pay in cash, at the request of the Executive, the spread between the option price and market value with respect to all unexercised stock options granted before the Date of Termination, whether or not such options are exercisable on the date of such request. Market value shall be deemed to be the last closing price for the stock subject to such option on the New York Stock Exchange on the Date of Termination or, should the stock cease to be listed on such Exchange prior to the Date of Termination, on the last date on which such stock was traded; and
(vi) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its Affiliates, including earned but unpaid stock and similar compensation (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Executive Agreement (Pittston Co)
Obligations of the Company Upon Termination. 4.1 If by the Company other than (a) Other Than for Cause Cause, Death or Disability; by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s 's employment other than for CauseCause or Disability, or if the Executive shall terminate his employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(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 (A) the Executive's Annual Base Salary through the Date of Termination to the extent not previously paidpaid ("Accrued Salary") and (B) if such termination occurs following the end of a Fiscal Year and, prior to or following such termination, a Performance Bonus for such Fiscal Year is determined by the Board to have been earned, the salary and any accrued paid time off through the date amount of the Change in Controlsuch Performance Bonus ("Accrued Bonus");
(ii) the Company shall continue to pay to the Executive his Annual Base Salary, in effect as of the Date of Termination, for a period of (A) one year following the Date of Termination or (B) the remainder of the Employment Period, whichever is longer, payable in accordance with the Company's normal payroll practices;
(iii) the Company shall continue to provide to the Executive, for the period of time during which the Executive is receiving his Annual Base Salary in accordance with paragraph (ii) above, benefits under "employee welfare plans" (as defined in Section 3(l) of the Employee Retirement Income Security Act of 1974, as amended), at least equal to those which are provided to the senior executives of the Company during such period; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive any of such benefits under another employer provided plan at the other employer's cost, other than reasonable and customary employee contributions (whether or not he actually elects to receive such benefits), the corresponding benefits described herein shall be terminated; further, provided, however, that the Company shall not be required to provide any such benefit if the effect thereof would be to violate the terms of any law, plan or insurance policy or jeopardize the tax benefit associated with such benefit to which the Company otherwise would be entitled, but in such event, the Company shall pay to the Executive, in cash, an amount equal to the product cost of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied providing such benefit. Any such benefits provided by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred another employer shall be promptly reported by the Executive under any nonqualified deferred compensation plan sponsored by to the Company, together with any accrued earnings thereon, and not yet paid by Company as the CompanyExecutive becomes eligible therefor;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in notwithstanding any and all stock incentive awards granted provision hereof to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and contrary, all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have granted pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by immediately vest and remain exercisable for the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidentire original ten-year term of such options.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death or by Disability; By the Executive for Good Reason. If Subject to Section 5, if, during the Employment Period, (x) the Company shall terminate the Executive’s employment other than for Cause, death or if Disability or (y) the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(iA) a lump sum cash payment within 30 days after the Date of Termination equal to the aggregate of the following amounts: (1) the Executive’s Annual Base Salary and accrued vacation pay through the Date of Termination, (2) the Executive’s accrued Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election) if such bonus has not been paid as of the Date of Termination, and (3) the Executive’s business expenses that have not been reimbursed by the Employer as of the Date of Termination that were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (1) through (3), to the extent not previously paid, paid (the salary and any accrued paid time off through the date sum of the Change amounts described in Controlclauses (1) through (3) shall be hereinafter referred to as the “Accrued Obligations”);
(B) subject to the Executive’s delivery (and non-revocation) of an executed release of claims against the Employer, FR and their respective officers, directors, employees and affiliates in substantially the form attached hereto as Exhibit B (the “Release”), 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 two months after the end of the calendar year in which the Date of Termination occurs) (the “Release Deadline”), an amount equal to two times the sum of (X) Executive’s Annual Base Salary as of the Date of Termination and (Y) Executive’s Target Bonus for the fiscal year in the which the Date of Termination occurs, paid (i) 50% in a cash lump sum on the 30th day following the Date of Termination and (ii) an 50% in equal installments over 24 months following the Date of Termination in accordance with the Company’s normal payroll practices; provided, however, that if the Date of Termination occurs within 24 months following a Change in Control Event which also constitutes a “change in the ownership” of FR, a “change in effective control” of FR or a “change in the ownership of a substantial portion of the assets” of FR, as each such term is defined in Treas. Reg. Section 1.409A-3(i)(5), the payment described in this paragraph shall be made in a single lump sum not later than ten business days following the Date of Termination, and shall not be subject to the Executive’s execution of a Release; and
(C) a lump-sum amount in cash equal to the product of (ix) the annual bonus Annual Bonus which would have been earned by the Executive for the calendar year immediately preceding the calendar fiscal year in which the Change in Control Date of Termination occurs multiplied by had the Executive remained employed throughout such fiscal year, based on the degree to which the applicable performance goals are achieved and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during the calendar fiscal year in which the Change in Control occursDate of Termination occurs through the Date of Termination, and the denominator of which is 365, which amount shall be paid on the date on which annual bonuses for the fiscal year in which the Date of Termination occurs are paid to senior executives of the Company generally, but not later than 75 days after the end of the fiscal year in which the Date of Termination occurs;
(ii) For two years following the Date of Termination (the “Benefits Period”), the Company shall provide the Executive and Executive’s spouse and eligible dependents with medical and dental insurance coverage (the “Health Care Benefits”) no less favorable to those which the Executive and his spouse and eligible dependents were receiving immediately prior to the Date of Termination; provided, however, that the Health Care Benefits shall be provided during the Benefits Period in such a manner that such benefits are excluded from the Executive’s income for federal income tax purposes; provided, further, however, that if the Executive becomes re-employed with another employer and is eligible to receive health care benefits under another employer-provided plan, the Health Care Benefits provided hereunder shall cease. The benefits provided pursuant to this Section 4(a)(ii) are referred to hereafter as the “Post-Employment Health Care Benefits”; and
(iii) all amounts previously deferred by To the extent not theretofore paid or provided, the Employer shall 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 nonqualified deferred compensation plan sponsored plan, program, policy or practice or contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”). Notwithstanding the foregoing provisions of Section 4(a)(i), in the event that the Executive is a “specified employee” (within the meaning of Section 409A of the Code and with such classification to be determined in accordance with the methodology established by the Company) (a “Specified Employee”), together with any accrued earnings thereon, amounts and not yet paid by benefits (other than the Company;
Accrued Obligations) that are deferred compensation (iv) an amount equal to three (3) times within the sum meaning of Section 409A of the Executive’s Annual Base Salary and Code) that would otherwise be payable or provided under Section 4(a)(i) during the Annual Bonus.
(b) The Executive six-month period immediately following the Date of Termination shall become fully vested in instead be paid, with interest on any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until delayed payment at the applicable option expiration date. All forfeiture conditions that as of a Change federal rate provided for in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(cSection 7872(f)(2)(A) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageInterest”). If , on the Executive elects to receive COBRA Continuation Coverage, first business day after the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 date that is six months following the Executive’s Date of Termination (the “409A Payment Date”).
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Employment Agreement (First Industrial Realty Trust Inc)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason(a) OTHER THAN FOR CAUSE OR DISABILITY, OR FOR GOOD REASON. If If, during the Employment Period, the Company shall terminate terminates the Executive’s 's employment for any reason other than for CauseCause or Disability, or if the Executive shall terminate terminates his employment for Good Reason, the Company’s obligations to the Executive shall be as follows:;
(a1) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive a single lump sum cash payment Executive, not later than ten (10) days following the Date of Termination, (i) an amount equal to three times the sum of (x) the following amounts:Executive's then current Annual Base Salary (without giving effect to any reductions thereof) plus (y) the Executive's then current Annual Target Bonus; (ii)
(iA) any accrued but unpaid amounts of the Executive's Annual Base Salary through the Date of Termination, (B) any bonus under any Annual Bonus Plan accrued but unpaid through the Date of Termination (including without limitation any such bonus payable on a date following the Date of Termination with respect to a fiscal year or other applicable measuring period completed prior to the extent not previously paidDate of Termination), the salary (C) any other compensation and any benefits accrued paid time off (and, where applicable, vested) through the date Date of Termination under the terms of the Change Company's compensation and benefit plans, programs or arrangements (including without limitation vacation benefits and the deferred compensation arrangements referenced in Control;
Section 3(d) hereof) as in effect immediately prior to the Date of Termination (or, if in any case providing a greater benefit to Executive, as in effect immediately prior to an event constituting Good Reason) and (D) any amounts of reimbursable business expenses incurred through the Date of Termination (all of the items in this clause (ii) are hereinafter referred to collectively as the "Accrued Benefits"); (iii) an amount equal to the product of (iA) the maximum annual bonus that the Executive would have been eligible to earn under the Annual Bonus Plan for the calendar year immediately preceding the calendar year in bonus measurement period during which the Change in Control occurs multiplied by Date of Termination occurs, and (iiB) a fraction, the numerator of which is the number of days employed by from the Company during first day of such period through the calendar year in which the Change in Control occurs, Date of Termination and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Companytotal number of days in such measurement period, together with a similarly pro rated bonus with respect to any accrued earnings thereon, and not yet paid by the Company;
applicable long term incentive plan then in effect; (iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted deferred compensation amounts which would otherwise have been credited to the Executive under any plan or otherwise which have not become exercisable pursuant to the New Deferred Compensation Plan had Executive continued employment with the Company through the end of the then remaining Employment Period (measured as of the date Date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable Termination without regard to any stock optionsubsequent renewals thereof), deferred stock unitwithout reduction in any such case to a net or other present value; and (v) if not theretofore paid, restricted stock or restricted share units awarded the 1999 Guaranteed Bonus;
(2) medical coverage provided to the Executive by immediately prior to the Company shall lapse immediately.
Date of Termination (c) Except as or, at Executive's sole discretion, medical coverage provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either immediately prior to the (ioccurrence of any event constituting Good Reason) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required shall continue to be provided by the Company hereunder shall be reduced by to the amount Executive (and, if applicable, his spouse and dependents) for three years following the Date of coverage provided by such other employer’s welfare benefit plans.Termination;
(d3) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums Executive's then outstanding stock options shall vest and become fully exercisable as of the Date of Termination and (i) the Option shall remain fully vested and exercisable throughout the remainder of its ten-year term and (ii) any other outstanding options to acquire Company securities shall similarly remain exercisable for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.remainder of their stated term, without regard to any early termination provisions or other terms and conditions otherwise applicable to such options; and
(e4) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior remaining restrictions applicable to the Change Restricted Stock and any other restricted stock awards shall immediately lapse and any performance goals or other conditions applicable to any other equity incentive awards shall immediately be deemed to have been satisfied in Control, the Executive has full (with performance goals being deemed to have been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiarysatisfied at targeted levels).
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Employment Agreement (Rite Aid Corp)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than for Cause Cause, Death or Disability; by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment 's employment, other than for Cause Cause, Death or if Disability, or the Executive terminates employment for Good Reason, the Company shall continue to provide the Executive with the compensation and benefits set forth in paragraphs (a), (b) and (c) of Section 3 as if he had remained employed by the Company pursuant to this Agreement through the end of the Employment Period and then retired (at which time he will be treated as eligible for all retiree welfare benefits and other benefits provided to retired senior executives, as set forth in Sections 3(c) and (f)); PROVIDED, that the Incentive Compensation for such period shall be equal to the maximum Incentive Compensation that the Executive would have been eligible to earn for such period; PROVIDED, further that in lieu of stock options, restricted stock and other stock-based awards, the Executive shall be paid cash equal to the fair market value (without regard to any restrictions) of the stock options, restricted stock and other stock-based awards that would otherwise have been granted; PROVIDED, further, that to the extent any benefits described in paragraph (c) of Section 3 cannot be provided pursuant to a plan or program maintained by the Company for its executives, the Company shall provide such benefits outside such plan or program at no additional cost (including without limitation tax cost) to the Executive and his family; and PROVIDED, finally, that during any period when the Executive is eligible to receive benefits of the type described in clause (B) of paragraph (c) of Section 3 under another employer-provided plan, the benefits provided by the Company under this paragraph (a) of Section 5 may be made secondary to those provided under such other plan. In addition to the foregoing, any restricted stock outstanding on the Date of Termination shall be fully vested as of the Date of Termination and all options outstanding on the Date of Termination shall be fully vested and exercisable and shall remain in effect and exercisable through the end of their respective terms, without regard to the termination of the Executive's employment. The payments and benefits provided pursuant to this paragraph (a) of Section 5 are intended as liquidated damages for a termination of the Executive's employment by the Company other than for Good Reason (including death Cause or disability), this Agreement shall terminate without further obligation Disability or for the actions of the Company leading to a termination of the Executive's employment by the CompanyExecutive for Good Reason, other than and shall be the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidsole and exclusive remedy therefor.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other than for Cause or by the Executive for Good Reason; Termination by the Company -------------------------------------------------------------------- Other Than for Cause, Death, Disability or Retirement. If If, during the ----------------------------------------------------- Employment Period, the Company shall terminate the Executive’s 's employment other than for Cause, death, Disability or if the Retirement, or Executive shall terminate employment for Good Reason, then in consideration of Executive's services rendered prior to such termination and as reasonable compensation for his compliance with the Company’s obligations to the Executive shall be as followsRestrictive Covenants in Section 12 hereof:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) Executive's Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and (2) any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation pay, in each case to the extent not previously paidtheretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the amount equal to two times the Executive's Base Salary in effect as of the Date of Termination (provided, if Executive terminates employment pursuant to Section 7(c)(v), the amount shall equal the greater of (i) Executive's Base Salary in effect as of the Date of Termination or (ii) the Base Salary to which Executive would have been entitled during the then-remaining term of this Agreement had such employment not been terminated, provided that in no event shall the amount paid under this provision exceed two times Executive's Base Salary in effect as of the Date of Termination) (the "Severance Payment"); and
(ii) for one year after Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to Executive and/or Executive's family at least equal to those which would have been provided to them in accordance with the welfare plans, programs, practices and policies described in Section 5(d) of this Agreement if Executive's employment had not been terminated or, if more favorable to 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 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 ("Welfare Benefits"); and
(iii) to the extent not theretofore paid or provided, the Company shall timely pay or provide to Executive any other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) the entire unvested portion of the Option shall immediately vest.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) By Executive for Good Reason or Other than for Good Reason; By the Company other than Other Than for Cause or by Disability. In partial consideration for the noncompetition covenants of the Executive for Good Reason. If pursuant to Section 8(b) and in part as liquidated damages in lieu of the payments and benefits to which the Executive would have been entitled through the remainder of the Employment Period, if, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for Cause, Cause or if Disability or the Executive shall terminate employment for Good Reason or other than for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive or his legal representatives in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of
(i1) the Executive's Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, ,
B. the salary and any accrued paid time off through the date of the Change in Control;product of
(ii) an amount equal to the product of (i1) the annual Executive's target bonus as determined under the applicable Xxxxxx compensation or incentive plan(s) for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Date of Termination occurs, and
(ii2) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;, and
(iii) all amounts C. any compensation previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, (together with any accrued interest or earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offvacation pay, in each case to the extent not previously paidtheretofore paid (the sum of the amounts described in clauses (A), (B), and (C) shall be hereinafter referred to as the "Accrued Obligations"); and
(ii) subject to the Executive's remaining reasonably available to assist the Company, in such manner and at such time as shall be mutually agreed in good faith upon the Company's request through appropriate notice to the Executive, in the transition of his duties and responsibilities hereunder, the Company shall pay to the Executive an amount equal to the Annual Base Salary that would have been payable to him had he continued to be employed for the period commencing on the Date of Termination and ending on the day before the third anniversary thereof (the "Severance Period") and an amount equal to three times the Executive's target bonus as determined under the Company's applicable compensation or incentive plan(s) for the year in which such Date occurs. The amounts described in the immediately preceding sentence shall be deemed earned on the Date of Termination, but subject to Section 5(b) shall be payable in 36 substantially equal monthly installments over the Severance Period. It is expressly understood that the assistance to be provided to the Company under this clause (ii) shall not involve any fixed time commitment on the part of Executive.
(iii) for purposes of calculating the Executive's retirement benefits under the SERP, the Executive shall be deemed to have completed three additional years of service and received the amounts payable under Section 5(a)(ii) over the Severance Period as compensation for such period of service.
(iv) for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue all fringe and other 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 3(d), 5 (e), (f) and (g)of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility, and for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period.
Appears in 1 contract
Samples: Employment Agreement (Fisher Scientific International Inc)
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other than for Cause or by the Executive for Good Reason; Termination by the Company Other Than for Cause or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for CauseCause or Disability, or if the Executive shall terminate employment for Good Reason by giving notice during the 120-day period following the occurrence of the event described in Section 5(c) giving rise to Good Reason, the Company’s obligations to the Executive shall be as follows:
(i) the Company shall pay to Executive in a lump sum in cash, within 30 days after the date of termination, his Annual Base Salary through the date of termination to the extent not theretofore paid (the “Accrued Obligations”); and
(ii) the Company shall pay to Executive in a lump sum in cash upon the earlier of (a) The Company shalla date no later than 30 days after Executive’s death, within thirty business days or (b) the first day of the Termination Dateseventh month following Executive’s “separation from service” as defined in Section 409A of the Internal Revenue Code of 1986 (the “Code”) and applicable regulations, pay without giving effect to any elective provisions that may be available under such definition (“Separation from Service”) the Executive a single lump sum cash payment equal to the sum aggregate of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to A. the product of (ix) the Executive’s target annual incentive bonus for the calendar year immediately preceding the calendar year in which the Change in Control date of termination occurs multiplied by (ii“Target Annual Bonus”) and (y) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursdate of termination, and the denominator of which is 365;365 (the “Prorata Current Year Bonus”); and
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount B. a severance payment equal to three (3) 200% times the sum of the Executive’s Annual Base Salary and the Target Annual Bonus.; and
(biii) The the Company shall continue to provide, for 24 months after Executive’s date of termination (the “Welfare Benefits Continuation Period”), or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, any group health benefits to which Executive and/or Executive’s eligible dependents would otherwise be entitled to continue under COBRA, or benefits substantially equivalent to those group health benefits which would have been provided to them in accordance with the Welfare Plans described in Section 4(b)(iv) of this Agreement if Executive’s employment had not been terminated, provided, however, that (A) if Executive becomes employed with another employer (including self-employment) and receives group health benefits under another employer provided plan, the Company’s obligation to provide group health benefits described herein shall become cease, except as otherwise provided by law; (B) the Welfare Benefits Continuation Period shall run concurrently with any period for which Executive is eligible to elect health coverage under COBRA; (C) for all months after the initial 18 months of the Welfare Benefits Continuation Period, the applicable monthly COBRA premium for such group health benefits, determined in accordance with Code Section 4980B and the regulations thereunder, shall be reimbursed to Executive by the Company as taxable compensation by including such amount in Executive’s income in accordance with applicable rules and regulations; (D) during the Welfare Benefits Continuation Period, the benefits provided in any one calendar year shall not affect the amount of benefits provided in any other calendar year; (E) the reimbursement of an eligible taxable expense shall be made on or before December 31 of the year following the year in which the expense was incurred; and (F) Executive’s rights pursuant to this Section 6(a)(iii) shall not be subject to liquidation or exchange for another benefit; and
(iv) all of Executive’s equity or incentive awards outstanding on the date of termination shall be treated as follows: (x) all time-based restrictions on awards of restricted stock or unit awards shall lapse as of the date of termination, (y) each such option shall be fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of termination and shall remain in effect and exercisable through the Change in Control end of its original term, without regard to the termination of Executive’s employment; and all stock options (including options vested as z) any performance shares or units shall be governed by the terms and conditions of the Change in ControlCompany’s long-term incentive plan under which they were awarded; and
(v) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentextent not theretofore paid or provided, the Company shall arrange timely pay or provide to provide the Executive and his family welfare any other amounts or benefits (includingrequired to be paid or provided or which Executive is eligible to receive under any plan, without limitationprogram, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans policy or practice or contract or agreement of the Company applicable with respect to the Executive and his family during either the its affiliated companies (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare such other amounts and benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by hereinafter referred to as the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation CoverageOther Benefits”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Samples: Change in Control Agreement (Journal Communications Inc)
Obligations of the Company Upon Termination. 4.1 a. If your employment with the Company is terminated as a result of (i) the Company’s delivering a notice to you of a termination due to your Disability, (ii) termination by the Company other than for Cause with Cause, or by the Executive for (iii) your resignation without Good Reason. If during the Employment Period, the Company shall terminate pay or provide or cause to be paid or provided to you within thirty (30) days after the ExecutiveTermination Date in the aggregate the following amounts:
i. any earned but unpaid Base Salary through your termination date, payable in accordance with the Company’s most favorable payroll practice, and
ii. any accrued vacation pay; and
iii. reimbursement, within 30 days following submission by you to the Company, of unreimbursed business expenses properly incurred by you; and
iv. continued right of participation in any Company sponsored group health insurance plans, and
v. any accrued and vested benefits provided upon a termination of employment under the Company’s employee benefit plans (other than for severance plans, programs, arrangements) in which you participate, in accordance with the terms thereof, or otherwise required by law to be provided to you upon a termination of employment (the amounts and benefits described in the preceding clauses (i) through (v), in the aggregate, the “Accrued Rights”). Other than the Accrued Rights, you will not be entitled to any compensation or other benefits hereunder or under any other benefit plan, program, or arrangement of the Company upon or following such termination.
b. In the event that the Company involuntarily terminates your employment without Cause, or if the Executive shall Disability or you terminate your employment for Good Reason, the Company’s obligations in addition to the Executive shall be as followsAccrued Rights, the Company will provide you with:
(a) The Company shall, within thirty business days of the Termination Date, i. Lump sum severance pay to the Executive a single lump sum cash payment equal to three times the sum of the following amounts:
(i) to the extent not previously paid, the salary your Base Salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the average annual cash bonus received by you for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by last 3 years prior to termination (“Severance Amount”), paid out within thirty (30) days; and
ii) a fraction, the numerator of which is the number of days employed by . the Company during will accelerate vesting of all time-based equity, phantom equity and long-term incentive awards on the calendar year 30th day following your termination; and
iii. the Company will cause all performance-based equity, phantom equity and long-term incentive awards, to continue in which effect through the Change in Control occurs, end of the applicable performance period and vest based on actual results as if you had remained employed through the denominator end of which is 365;the applicable performance period; and
(iii) all amounts iv. Any compensation previously deferred by the Executive you under any nonqualified deferred compensation a plan sponsored by the Company, Company (together with any accrued interest or earnings thereon) shall be distributed at the earliest time permitted by such plan or, and not yet paid by if permitted under the Company;
(iv) an amount equal to three (3) times the sum terms of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any such plan and all stock incentive awards granted to applicable laws, statutes or regulations governing such plans, at such other time as you may elect under the Executive under any terms of such plan (“Other Compensation”); and
v. To the extent not theretofore paid or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employmentprovided, the Company shall arrange timely pay or provide you any other amounts or benefits required to provide the Executive and his family welfare benefits (includingbe paid or provided or which you are eligible to receive under any plan, without limitationprogram, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans policy or practice or contract or agreement of the Company applicable and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”); and
vi. After the end of the fiscal year and before the date that an annual bonus is paid in the subsequent year with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employersuch completed prior year, then to the amount of coverage required to be provided extent that a bonus for such prior year was earned by you based upon the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B achievement of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverageperformance goals for such prior year, the Company shall will pay all of you such earned bonus at the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Datesame time bonuses are paid to active employees.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 5.1 If by the Employee for Good Reason or by the Company other than Other Than for Cause or by the Executive for Good ReasonDisability. If If, during the Employment Period, the Company shall terminate the Executive’s Employee's employment other than for CauseCause or Disability, or if the Executive Employee shall terminate employment for Good Reason, the Company’s 's obligations to the Executive Employee shall be as follows:
(a) The Company shall, within thirty five business days of the Termination Datesuch termination of employment, pay to the Executive Employee a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary Annual Base Salary and any accrued paid time off through the date of the Change in ControlTermination Date;
(ii) an amount equal to the product of (i1) the annual bonus Annual Incentive (as defined in Section 3.2(b)) for the calendar year immediately preceding the calendar year Performance Period in which the Change in Control Termination Date occurs multiplied by (ii2) a fraction, the numerator of which is the number of days employed by the Company actually worked during the calendar year in which the Change in Control occurssuch Performance Period, and the denominator of which is 365;; or, if greater, the amount of any Annual Incentive paid or payable to the Employee with respect to the Performance Period for the year in which the Termination Date occurs; and,
(iii) all amounts previously deferred by or accrued to the Executive benefit of the Employee under any nonqualified deferred compensation plan sponsored by the Company, excluding the Management Supplemental Employee Retirement and Deferred Compensation Plan (the "SERP"), together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive Company shall pay the Employee, no later than the tenth day of each month for eighteen months following the Employee's Termination Date, an amount equal to the monthly pro-rata sum of the Employee's Annual Base Salary plus the Severance Incentive.
(c) Each of the Employee's stock options granted under the Long Term Incentive Plan (the "LTIP"), any successor plan or otherwise that is exercisable on the Termination Date shall remain exercisable until the applicable option expiration date.
(d) On the Termination Date (1) the Employee shall become fully vested in, and may thereupon and until the applicable expiration date of such stock incentive awards exercise in whole or in part, any and all stock incentive awards granted to the Executive Employee under the LTIP, any successor plan or otherwise which have not become exercisable as of the date of Termination Date, and (2) the Change Employee shall become fully vested at the target level in Control and all stock options (including options vested any cash incentive awards granted under the LTIP, a successor plan or otherwise which have not, as of the Change in ControlTermination Date, become fully vested.
(e) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control the Termination Date are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive Employee by the Company pursuant to the LTIP, a successor plan or otherwise shall lapse immediately.
(cf) Except During the Severance Period (or until such later date as provided in subsections (d) and (eany Welfare Plan of the Company may specify), for a one year period following the Executive’s termination of employment, the Company shall arrange continue to provide to the Executive Employee and his the Employee's family welfare benefits (including, without limitation, medical, prescription, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans Welfare Plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.respect to
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shallOther Than for ------------------------------------------- -------------- Cause, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan Death or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Disability; Good Reason. If, during the Employment Period, the --------------------------------------- Company terminates the Executive’s employment 's employment, other than for Cause or if Disability, or the Executive terminates his employment other than for Good Reason (including death or disability)Reason, this Agreement the Company shall terminate without further obligation by pay the Companyamounts, other than continue the obligation to pay benefits described and take the action with respect to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offOptions, in each case as set forth subparagraph (i) below. The payments and other provisions provided pursuant to this Section 5(a) are intended as liquidated damages for the termination of the Executive's employment by the Company other than for Cause or Disability or for the actions of the Company leading to a termination of the Executive's employment by the Executive for Good Reason and shall be the sole and exclusive remedy therefor; provided further that as a condition precedent for such payments the Executive -------- ------- shall execute and deliver a general release of all claims against the Company, in form and substance satisfactory to the Company.
(i) The amounts to be paid as described above are:
A. The Executive's earned and accrued but unpaid cash compensation, in the form of a lump-sum payment, to be paid within 30 days after the Date of Termination, which shall equal the sum of (1) any portion of the Executive's Annual Base Salary earned through the Date of Termination that has not yet been paid, (2) any unpaid Annual Bonus that was earned by the Executive and declared due and owing by the Company; and (3) any accrued but unpaid vacation time (but without giving effect to any carry-over of unused time from prior years), in each case subject to applicable taxes and withholding (the amounts set forth in subclauses (1)-(3) constitute the "Accrued Obligation").
B. A payment, payable in accordance with the Company's standard monthly payroll practices and subject to withholding and taxes, of an amount equal the Executive's Annual Base Salary, determined on a monthly basis, for a period of 6 months from the Date of Termination; provided, however, that -------- ------- if Executive becomes re-employed during the 6 month period, the Company's obligations to make the payments set forth in this Paragraph B shall be offset to the extent not previously paidof the Executive's compensation in the new employment.
C. The benefits to be continued for up to 6 months from the Date of Termination are group medical benefits to the Executive and/or the Executive's family equivalent to those provided to the Executive under this Agreement; provided, however, that during any period when the Executive is -------- ------- eligible to receive such benefits under another employer-provided plan, the benefits provided hereunder shall terminate.
D. All the then unvested Options (including options granted as an Annual Bonus) shall vest as of the date of termination and Executive shall have 3 months from the Date of Termination (unless any applicable Option Plan provision shall require a shorter period) to exercise such options; provided that during such 3 -------- ---- month period the Executive otherwise complies with the provisions of the Agreement applicable to his post-termination conduct.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If (a) Termination by the Company other than Other Than for Cause or Disability; Termination by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment PeriodTerm of Employment, the Company terminates the Executive’s 's employment other than for Cause or if Disability, or the Executive terminates employment other than for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then and, with respect to payments and benefits described in clauses (including death or disabilityi)(B), this Agreement shall terminate without further obligation by (i)(C) and (ii) below, only if the Executive executes a release of all employment-related claims against the Company and its affiliates in a form satisfactory to the Company, other than :
(i) the obligation to Company shall pay to the Executive in cash the following amounts:
(A) the sum of (1) the Executive’s unpaid salary 's Base Salary through the Termination Date, plus any accrued paid time off, in each case date of termination to the extent not theretofore paid, (2) any annual bonus payable under Section 4(b), which has been earned but not theretofore paid, (3) any accrued vacation pay to the extent not theretofore paid, and (4) unless the Executive has elected a different payout date in a prior deferral election, any compensation previously paiddeferred by the Executive (together with any accrued interest or earnings thereon) to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (4) shall be hereinafter referred to as the "Accrued Obligations");
(B) the amount equal to the product of (x) the Executive's annual Base Salary in effect as of the date of termination, and (y) the number of whole and fractional years remaining in the Term of Employment as of the date of termination; and
(C) the amount equal to the product of (x) the amount of the target bonus applicable to the Executive under the MIP in respect of the Company's fiscal year in which the date of termination occurs, and (y) the number of years remaining in the Term of Employment as of the date of termination (with any fractional years treated as whole years).
(ii) all outstanding unvested awards under the Stock Bonus Plan, the Omnibus Plan and any other equity compensation plans of the Company shall become immediately vested in full and, in the case of any stock options or similar awards requiring exercise by the holder, shall become immediately exercisable;
(iii) for the remaining Term of Employment, the Company shall continue medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans described in Section 4 of this Agreement if the Executive's employment had not been terminated, which coverage shall be in addition to and shall not reduce any continuation coverage required under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"); provided, however, that such benefits shall cease if the Executive becomes eligible to receive medical or dental benefits under the plan of another employer; and
(iv) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"). The Company shall pay the amounts described in clause (i)(A) in a lump sum in cash within 60 days of the date of the termination. The Company shall pay the amounts described in clauses (i)(B) and (i)(C) on the dates such amounts would have been paid if the Executive's employment with the Company had not terminated; provided, however, that the Company shall discontinue such payments, and the Executive shall forfeit all rights to such amounts, if the Executive becomes employed by a Competitor (as defined in Section 9(b)). With respect to the medical and dental benefits described in clause (iii), the Company may charge the Executive an amount equal to the applicable employee premium for COBRA continuation coverage; provided, however, that in such event the Company shall reimburse the amount of such premium to the Executive.
(v) The Company shall indemnify and hold the Executive harmless from and against (i) the imposition of excise tax (the "Excise Tax") under Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code"), on any payment made pursuant to this Section 5(e) (including any payment made under this paragraph) or under any other plan, arrangement or agreement of the Company, its successors, any person whose actions result in a change of control of the Company or any person affiliated with any of them (collectively referred to as the "Payments"), and (ii) any federal, state or local income tax imposed on any payment made pursuant to this paragraph. For the purposes of determining whether any of the Payments will be subject to the Excise Tax and the amounts of such Excise Tax, independent tax counsel, reasonably acceptable to the Executive, shall be selected by the Company's independent auditors. For the purpose of determining the amount of any payment under clause (ii) of the first sentence of this paragraph, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals in the calendar year in which the indemnity payment is to be made and state and local income taxes at the highest marginal rate of taxation applicable to individuals as are in effect in the state and locality of the Executive's domicile for income tax purposes in the calendar year in which such payment is to be made, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If (a) Prior to or More than 24 Months after a Change in Control: Termination by the Company other than for Cause or by the Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability; Expiration of Executive’s Employment Period. If If, prior to or more than 24 months after a Change in Control and during the Executive’s Employment Period, the Company shall terminate the terminates Executive’s employment other than for CausePoor Performance, Cause or Disability, or if the Executive shall terminate terminates his employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, or upon the Companyexpiration of the Executive’s obligations Employment Period, as described in Section 3, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive shall be as follows:executes a Release in substantially the form of Exhibit A hereto and the period for revoking such Release (the “Release”) has expired before the 30th day after the Date of Termination):
(ai) The the Company shall, will pay to Executive in a lump sum in cash within thirty business 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment) the sum of (A) Executive’s Base Salary through the Date of Termination Dateto the extent not theretofore paid, and (B) any accrued vacation pay to the Executive a single lump sum cash payment equal to extent not theretofore paid (the sum of the following amounts:amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(iii) for the longer of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period plus seven months (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly or other installments (not less frequently than monthly) as are customary under the Company’s payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) on the 30th day after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum in cash an amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, (B) the 90th day following the end of the Normal Severance Period or (C) 10 years from the date of grant of the options; and
(viii) to the extent not previously paidtheretofore paid or provided, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal Company will timely pay or provide to Executive his Other Benefits pursuant to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in plans, policies, practices and programs under which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonussuch Other Benefits are provided.
(b) The Prior to or More than 24 Months after a Change in Control: Termination by the Company for Poor Performance. If, prior to or more than 24 months after the occurrence of a Change in Control, the Company terminates Executive’s employment for Poor Performance, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vi) below, only if Executive shall become fully vested executes the Release and the period for revoking such Release expires before the 30th day after the Date of Termination):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment); and
(ii) for a period of 12 months after the Date of Termination (the “Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly installments or other installments (not less frequently than monthly) as are customary under the Company’s payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and all stock incentive awards granted the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive under equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any plan or otherwise which of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) all grants of Restricted Stock held by Executive as of the Date of Termination that would have not become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(v) subject to the specific approval of the Compensation Committee, all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(v) above) will remain exercisable through the earlier of (A) the original expiration date of the Change in Control and all stock options Option, (including options vested as B) the 90th day following the end of the Change in Controllater of (1) shall remain exercisable until six months from the applicable option expiration date. All forfeiture conditions that as Date of a Change in Control are applicable to any stock optionTermination, deferred stock unit, restricted stock or restricted share units awarded (2) the end of the Poor Performance Severance Period or (C) 10 years from the date of grant of the options; and
(vii) to the Executive by extent not theretofore paid or provided, the Company shall lapse immediatelywill timely pay or provide to Executive his Other Benefits pursuant to the plans, policies, practices and programs under which such Other Benefits are provided.
(c) Except as provided After or in subsections (d) and (e), for Connection with a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s : Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.;
Appears in 1 contract
Samples: Employment Agreement (American Safety Insurance Holdings LTD)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause; or by the Executive for Good ReasonReason During the Transition Period. If Subject to Section 7(e), if, during the Employment Transition Period, the Company shall terminate terminates the Executive’s employment under this Agreement (other than for Cause, ) or if the Executive shall terminate terminates employment under this Agreement for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) the Executive shall be entitled to severance equal to continued payment for two years after the Separation from Service of the Executive’s base salary (as in effect on the Date of Termination without giving effect to any diminution in base salary that constitutes grounds for termination by the Executive for Good Reason in accordance with Section 6(c)(i)), which amount shall be paid in installments over such two-year period pursuant to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in ControlCompany’s normal payroll policy;
(ii) the Executive shall be entitled to receive the following bonus payments: (A) a bonus payment equal to an amount equal to representing 100% of the product of (i) the annual Executive’s target bonus for the calendar Executive’s salary grade for the fiscal year immediately preceding of the calendar year Company in which the Change in Control occurs such Separation from Service occurs, multiplied by (ii) a fraction, the numerator of which is the number of days employed by in such current fiscal year through the Company during the calendar year in which the Change in Control occursSeparation from Service, and the denominator of which is 365, with any such amount to be paid at the same time as annual bonuses for the fiscal year in which such Separation from Service occurs are paid by the Company under the applicable bonus program generally but in no event later than December 31 of the calendar year that includes the last day of the applicable fiscal year and (B) an amount equal to two times the average of the annual bonuses earned by the Executive over the prior three complete years preceding the Date of Termination (that is, not including the bonus year that includes the Date of Termination), which amount shall be paid in two equal installments at the same time that annual bonuses are paid by the Company under the applicable bonus program generally over the two-year period following the Date of Termination, but in no event later than December 31 of the calendar year that includes the last day of the applicable fiscal year;
(iii) all amounts previously deferred by For the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year 18-month period following the Executive’s Separation from Service (subject to earlier termination as described below), if the Executive elects to receive continuation coverage under the Company’s group health plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of employment1985 (“COBRA”), the Company shall arrange to provide pay the COBRA premium costs of medical, prescription, dental and vision coverage, if any, under the Company’s group health plans for the Executive and his family welfare benefits (includingand, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Controlextent permitted under COBRA, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoingspouse and eligible dependents, if any, with such payment not to exceed the Executive obtains comparable coverage under COBRA rates for such coverage; provided, however, that entitlement to any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder such COBRA premium payments shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable lawterminate upon COBRA ineligibility, including, without limitation, continuation coverage required by Section 4980B reason of the Code (“COBRA Continuation Coverage”)Executive’s commencement of eligibility under the group health plan of any other employer and the Executive’s commencement of eligibility for Medicare benefits under Title XVIII of the Social Security Act. The Executive shall notify the Company of the commencement of the Executive’s eligibility under the group health plan of any other employer and/or of eligibility for Medicare benefits under Title XVIII of the Social Security Act at any time during the 18-month period following the Executive’s Separation from Service. If the Executive elects remains on COBRA coverage for the entire 18-month period in which the Executive is entitled to receive COBRA Continuation Coveragesuch Company paid coverage, the Company shall pay all make monthly payments to the Executive for the 6-month period immediately following the expiration of the required premiums for 18-month COBRA period equal to the Executive and/or amount of premium costs that the Company would have paid on the Executive’s family behalf had the Executive been eligible to continued coverage under COBRA. Notwithstanding anything to the contrary set forth above, the Company, in its sole discretion, may discontinue any coverage contemplated hereunder in the event that such continuation is not permitted under or would adversely affect the tax status of the plan or plans of the Company pursuant to which the coverage is provided or could result in an excise tax on the Company or the Executive, in which case the Company shall make supplemental severance payments to the Executive in monthly amounts equal to the amounts to which the Executive otherwise would have been entitled hereunder in respect of such coverage for the 12 remainder of the period that the Company otherwise would have been obligated to pay such COBRA premium costs on behalf of the Executive. Any amounts that are paid on the Executive’s behalf or paid directly to the Executive as supplemental severance payments in accordance with this Section 7(a)(iii) shall be considered taxable income to the Executive and any taxes on such amounts shall be the Executive’s responsibility and subject to applicable tax withholding;
(iv) The Executive shall be entitled to receive executive level outplacement assistance under any outplacement assistance program then being maintained by the Company in accordance with the terms of any such program;
(v) The Executive shall become vested in any outstanding options, restricted stock or other equity incentive awards only to the extent provided for under the terms governing such equity incentive award; and
(vi) The Company shall pay, or cause to be paid, to the Executive, in a lump sum in cash within 30 days after the Separation from Service, the following accrued but unpaid cash compensation of the Executive (the “Accrued Obligations”): (V) the Executive’s base salary through the Date of Termination that has not yet been paid, (W) any annual bonus approved by the Compensation and Succession Planning Committee (the “Committee”) with respect to the immediately preceding fiscal year that has not been paid, (X) any accrued but unpaid vacation pay, (Y) any unreimbursed employee business expenses, and (Z) any vested benefits accrued and due under any applicable benefit plan, policy, practice or program of, or contract or agreement with, the Company. For the avoidance of doubt, this Section 7(a) shall not apply following the Transition Period and Section 5(e) and Section 7(e) shall instead apply during the Executive Chairman Period. The Company’s obligation to make any payments, or cause any payments to be made, under this Section 7(a) (other than the Accrued Obligations) shall be conditioned upon the Executive’s execution, and non-revocation, by the 60th day following the Date of Termination, of the Release. The payments and benefits described in this Section 7(a) (other than the Accrued Obligations) shall be paid, or shall begin to be paid or provided, as applicable, as soon as administratively practicable after the Release becomes irrevocable, but in no event later than 75 days following the Date of Termination, provided that if the 60-day period described above begins in one taxable year and ends in a second taxable year such payments or benefits shall not commence until the second taxable year. The first payment in a series of installment payments shall include all installments not yet paid from the Date of Termination until the first payment date. If and to the extent compliance with the requirements of Treas. Reg. § 1.409A-3(i)(2) (or any successor provision) is necessary to avoid the application of an additional tax under Section 409A to payments due to the Executive upon or following the Executive’s Separation from Service, then notwithstanding any other provision of this Agreement (or any otherwise applicable plan, policy, agreement or arrangement), any such payments that are otherwise due within six months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled Separation from Service shall be read to refer to such subsidiary.
deferred (hwithout interest) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay paid to the Executive in cash a lump sum immediately following that six month period. This provision shall not be construed as preventing payments pursuant to Section 7 equal to an amount up to two times the lesser of (x) the Executive’s unpaid salary through annualized compensation for the Termination Date, plus any accrued paid time off, in each case year prior to the extent not previously paidSeparation from Service, and (y) the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code, being paid to the Executive in the first six months following the Separation from Service. For purposes of the application of Section 409A, each payment in a series of payments described in this Section 7 shall be deemed a separate payment.
Appears in 1 contract
Samples: Employment Agreement (Cencora, Inc.)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death, Disability or Non-Extension of the Employment Period or by the Executive for Good Reason. If If, during the Employment Period, the Company shall terminate the Executive’s employment with the Company is terminated by the Company other than for Cause, death, Disability or if non-extension of the Employment Period or by the Executive shall terminate employment for Good Reason, the Company’s obligations Company shall pay or provide to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amountsExecutive:
(i) The Executive’s “Accrued Obligations” which include, to the extent not previously theretofore paid, :
(A) the salary and any accrued paid time off Executive’s Annual Base Salary earned through the date Date of the Change in ControlTermination;
(B) the Executive’s Benefits, including accrued vacation pay, vested or earned through the Date of Termination;
(C) the Executive’s Annual Incentive Award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs if such award has been earned but has not been paid as of the Date of Termination;
(D) the Executive’s vested awards, if any, under the Long-Term Incentive Programs; and
(E) 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.
(ii) The following severance benefits, subject to the Executive signing and not revoking a release of claims within the timeframe and in the form prescribed by the Company; provided that, such release shall not require the Executive to release any rights to Accrued Obligations, indemnification described in Section 8 or any amount of such severance benefits solely by signing and continuing to comply with such release and this Agreement:
(A) an amount equal to one (1) times the product of Executive’s Annual Base Salary described in Section 2(b)(i);
(iB) an amount equal to one (1) times the Executive’s Target Annual Incentive Award described in Section 2(b)(ii);
(C) the annual bonus Annual Incentive Award that the Executive would have earned, if any, for the calendar year immediately preceding the calendar fiscal year in which the Change in Control Date of Termination occurs (as determined by the Company after the end of such fiscal year when other Annual Incentive Awards are determined), multiplied by (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the calendar fiscal year in which the Change in Control Date of Termination occurs, and the denominator of which is three hundred sixty five (365) (the “Pro Rata Annual Incentive Award”);
(iiiD) all amounts previously deferred unvested awards held by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereonLong-Term Incentive Programs shall become vested as to the tranche of such awards next scheduled to vest on or after the Date of Termination and each such award, and each already vested award described in Section 4(a)(i)(D), which is a stock option shall continue to be exercisable for the remainder of its term; provided, that, this Section 4(a)(ii)(D) shall not yet paid apply to the Executive’s (1) restricted stock unit award which will be granted to the Executive in connection with the IPO in substitution of the phantom partnership unit award, measured by reference to the CompanyClass C Units of Aviv Healthcare Properties Limited Partnership, which was previously granted to the Executive on November 1, 2007 and (2) restricted stock award which will be granted to the Executive in connection with the IPO in substitution of the restricted Class D Units of Aviv Healthcare Properties Limited Partnership which were granted to the Executive prior to the IPO (collectively, the “Substitute Incentive Awards”);
(ivE) an amount equal the premium costs for medical, dental and vision coverage under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”), for the Executive and, where applicable, his spouse or dependents, to three the extent elected by the Executive under the applicable Company plans, for a period ending on the earlier of (31) times twelve (12) months following the sum Date of Termination and (2) the date on which the Executive obtains employment with a new employer; and
(F) outplacement services, the scope and provider of which shall be selected by the Executive in the Executive’s Annual Base Salary sole discretion, provided that the cost of such outplacement shall not exceed $15,000; and provided, further, that such outplacement benefits shall be reasonable and shall end on the Annual Bonusearlier of (1) twelve (12) months following the Date of Termination and (2) the date on which the Executive obtains employment with a new employer.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of Following a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any postOther Than for Cause, Death, Disability or Non-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B Extension of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected Employment Period or by the Executive to provide outplacement service for one year after Good Reason. If, during the Termination Date.
Employment Period and within the twenty-four (g24) To the extent that month period immediately prior to the following a Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause Cause, death, Disability or non-extension of the Employment Period or by the Executive for Good Reason, the Company’s re-engagement Company shall, in lieu of the Executive as a consultantpayments described in Section 4(a), an advisor pay or otherwise as an independent contractor provide to the Company Executive:
(i) The Executive’s Accrued Obligations.
(ii) The following severance benefits, subject to the Executive signing and not revoking a release of claims within the timeframe and in the form prescribed by the Company; provided that, such release shall not prohibit require the Executive from receiving to release any rights to Accrued Obligations, indemnification described in Section 8 or any amount of such severance benefits solely by signing and continuing to comply with such release and this Agreement:
(A) an amount equal to two (2) times the payments and benefits provided Executive’s Annual Base Salary described in this Section 4.1.2(b)(i);
4.2 If by (B) an amount equal to two (2) times the Company for Cause or Executive’s Target Annual Incentive Award described in Section 2(b)(ii);
(C) the Pro Rata Annual Incentive Award, if any, with respect to the fiscal year in which the Date of Termination occurs;
(D) all unvested awards held by the Executive other than under the Long-Term Incentive Programs shall become vested as to the tranche of such awards next scheduled to vest on or after the Date of Termination and each such award, and each already vested award described in Section 4(a)(i)(D), which is a stock option shall continue to be exercisable for Good Reason. Ifthe remainder of its term; provided, during that, this Section 4(b)(ii)(D) shall not apply to the Employment PeriodSubstitute Incentive Awards; and
(E) the premium cost for medical, the Company terminates the Executive’s employment dental and vision coverage under COBRA for Cause or if the Executive terminates employment other than for Good Reason (including death and, where applicable, his spouse or disability)dependents, this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidelected by the Executive under the applicable Company plans, for a period ending on the earlier of (1) eighteen (18) months following the Date of Termination and (2) the date on which the Executive obtains employment with a new employer.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) Notwithstanding anything to the contrary in this Agreement, regardless of the nature of any termination of Executive’s employment, the Company agrees it will maintain and continue to pay 85% of the cost of the Health Insurance through December 31, 2014; provided that if the terms of the Company’s group policy do not permit such continued coverage, the Company will obtain replacement, individual health insurance policies for Executive and his spouse with substantially the same coverage as the Health Insurance and pay 85% of the premiums on such policy. Executive acknowledges and agrees that if the Company utilizes an employee leasing service for the period through December 31, 2014 and the Health Insurance is available to Executive post-termination as required pursuant to this Agreement and the Company pays 85% of the premiums, the requirement of the Company provided for in this Section 7(a) shall be deemed satisfied for all purposes thereof.
(b) If either (i) the Company terminates Executive’s employment for Cause during the Term, or (ii) Executive terminates his employment during the Term for any reason other than Good Reason, then this Agreement shall terminate without further obligations on the part of the Company to Executive under Sections 4 and 5 of this Agreement, other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the payment of Executive’s employment other than for CauseBase Salary accrued through the date of termination, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paidtheretofore paid and reimbursement of any unreimbursed expenses.
(c) If either (i) Executive terminates this Agreement for Good Reason or (ii) the Company terminates this Agreement without Cause, then the salary and any Company shall pay to Executive (1) Executive’s Base Salary accrued paid time off through the date of termination, to the Change in Control;
extent not theretofore paid, (ii2)(A) if such termination occurs within six (6) months after the Commencement Date, an amount equal to six (6) months of Executive’s Base Salary, or (B) if such termination occurs after the product period specified in (A) above, an amount equal to nine (9) months of Executive’s Base Salary, in either case payable within thirty (i30) days after the date of such termination, (3) reimbursement of any unreimbursed expenses and (4) payment of a portion of the amount of the Performance Bonus equal to the maximum amount of the Performance Bonus multiplied by a fraction, (A) the annual bonus for numerator of which shall be the calendar year immediately preceding number of days elapsed from the beginning of the calendar year in which such termination occurs and (B) the Change in Control occurs multiplied by (ii) a fraction, the numerator denominator of which is shall be the total number of days employed by the Company during in the calendar year in which the Change such termination occurs (being 365 in Control occursa full year and 102 in 2012). In exchange for any such payments, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options execute, within thirty (including options vested as of the Change in Control30) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of days following such termination, a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans full release of the Company applicable with respect and its affiliates from all obligations other than as set forth in this Section 7(c) or from any usual and customary indemnification obligations of the Company to Executive as an officer thereof, in form and substance acceptable to the Executive and his family during either the (i) 90-day period immediately preceding the Change Company in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Dateits sole discretion. Notwithstanding the foregoing, if the Executive obtains comparable coverage under Company shall not be obligated to make any welfare benefits provided payments pursuant to this Section 7(c) until it has received such release, fully executed by another employerExecutive. For avoidance of doubt, then the amount nonrenewal of coverage required this Agreement pursuant to be provided Section 2 hereof shall not constitute a termination by the Company without Cause hereunder and shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plansnot entitle Executive to receive any payments pursuant to this Section 7(c).
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the parties hereto agree that Executive may have pursuant designate, by written notice to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than a beneficiary to receive the obligation payments described in Sections 6 and 7 in the event of his death. The designation of any such beneficiary may be changed by Executive from time to pay time by written notice to the Company. In the event Executive in cash fails to designate a beneficiary as herein provided, any payments which are otherwise to be made to a designated beneficiary under Sections 6 and 7 shall be made to the legal representative of Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidestate.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by (a) Good Reason or during the Company other Window Period; Other than for Cause Cause, Death or by the Executive for Good ReasonDisability. If If, during the Employment Period, the Company shall terminate the Executive’s 's employment other than for Cause, Cause or if Disability or the Executive shall terminate employment either for Good Reason, Reason or without any reason during the Company’s obligations to the Executive shall be as followsWindow Period:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
A. the sum of (i1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously paid, deferred by the salary Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid time off through (the date sum of the Change amounts described in Control;clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the amount (iisuch amount shall be hereinafter referred to as the "Severance Amount") an amount equal to the product of (i1) three and (2) the annual sum of (x) the Executive's Annual Base Salary and (y) any bonus for described in Section 4(b)(ii) paid or payable in respect of the calendar most recently completed fiscal year immediately preceding of the calendar year in which the Change in Control occurs multiplied by (ii) a fractionCompany; and, the numerator of which is the number of days employed provided further, that such amount shall be reduced by the Company during present value (determined as provided in Section 280G(d)(4) of the calendar year in which Internal Revenue Code of 1986, as amended (the Change in Control occurs, and "Code")) of any other amount of severance relating to salary or bonus continuation to be received by the denominator Executive upon termination of which is 365;
(iii) all amounts previously deferred by employment of the Executive under any nonqualified deferred compensation plan sponsored by severance plan, severance policy or severance arrangement of the Company, together with any accrued earnings thereon, and not yet paid by the Company;; and
(iv) an amount C. a separate lump sum supplemental retirement benefit equal to three the difference between (31) times the sum of actuarial equivalent (utilizing for this purpose the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable actuarial assumptions utilized with respect to the Executive and his family Employees Retirement Plan for Pogo Producing Company (or any successor plan thereto) (the "Retirement Plan") during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Applicable Date) of the benefit payable under the Retirement Plan and any supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") which the Executive would receive if the Executive’s Termination 's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are no less advantageous to the Executive than those in effect during the 90-day period immediately preceding the Applicable Date. Notwithstanding , and (2) the foregoingactuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Applicable Date) of the Executive's actual benefit (paid or payable), if any, under the Executive obtains comparable coverage under any welfare benefits provided by another employer, then Retirement Plan and the SERP (the amount of coverage required to be provided by the Company hereunder such benefit shall be reduced by hereinafter referred to as the amount of coverage provided by such other employer’s welfare benefit plans."Supplemental Retirement Amount"); and
(dii) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights for the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B remainder of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation CoverageEmployment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall pay all of the required premiums for 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 employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Date, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the 12 months following applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive’s Termination Date.Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period and to have retired on the last day of such period; and
(eiii) If to the Executive elects to convert any group term life insurance to an individual policyextent not theretofore paid or provided, the Company shall timely pay all premiums for 12 months and or provide to the Executive shall cease and/or the Executive's family any other amounts or benefits required to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive be paid or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to provided or which the Executive may be entitled and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Date (such other amounts and benefits shall be read hereinafter referred to refer to such subsidiaryas the "Other Benefits").
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Following any termination of Executive’s employment other than for Causeduring the Term, or if the Executive shall terminate not be otherwise compensated for the loss of employment for Good Reasonor the loss of any rights or benefits under this Agreement or any other plans and programs, the Company’s obligations to the Executive shall be except as followsprovided below:
(a) The Company shallIn the event Executive’s employment is terminated for Cause pursuant to Section 4(a), within thirty Executive shall be entitled to receive (i) any unpaid Base Salary through her date of termination, (ii) payment for any accrued but unused vacation or other similar paid time-off, (iii) payment of any vested benefit payable under the Company’s employee benefit plans in accordance with the terms thereof, and (iv) reimbursement for any reasonable business days of expenses incurred prior to such termination for which Executive has complied with the Termination DateCompany’s reimbursement policies (collectively, pay the “Accrued Rights”).
(b) In the event Executive’s employment terminates pursuant to the Section 4(b) due to Executive’s death, Executive a single lump sum cash payment equal (or her estate or representatives, as applicable) shall be entitled to the sum of the following amountsreceive:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;The Accrued Rights.
(ii) an amount equal to the product of (i) the annual bonus A pro rata Annual Bonus for the calendar year immediately preceding the calendar year in which the Change in Control such termination occurs multiplied by (ii) a fraction, the numerator of which is based on the number of days Executive was employed by the Company during the calendar year in of termination, which shall be calculated based on actual performance through the Change in Control occurs, end of such year and on the denominator of which is 365;same basis as other bonus-eligible employees and shall be paid at the same time as other bonus-eligible employees.
(iii) all amounts previously deferred by With respect to any Eligible Award (as defined below) outstanding at the Executive under any nonqualified deferred compensation plan sponsored by time of such termination, such award shall be treated in the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(ivmanner described in Section 5(e) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and Sirius LTIP or Section 7(e)(i) of the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted WTM LTIP, as applicable, or to the Executive extent granted under any a successor plan or otherwise which have not become exercisable as of the date of the Change thereto, shall be treated in Control and all stock options (including options vested as of the Change a manner set forth in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediatelysuch plan.
(c) Except as provided in subsections (d) and (e), for a one year period following In the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the event Executive’s employment with the Company as a common law employee is terminated by the Company other than for without Cause pursuant to Section 4(c) or is terminated by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor Reason pursuant to the Company shall not prohibit the Executive from receiving the payments and benefits provided Section 4(d) (in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Companyeach case, other than the obligation due to pay death), Executive shall be entitled to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.receive:
Appears in 1 contract
Samples: Employment Agreement (Sirius International Insurance Group, Ltd.)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause; or by By the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ----------------------------------------------------------------- Reason. If, during the Employment Period, the Company terminates the Executive’s 's ------ employment (other than for Cause Cause) or if the Executive terminates employment other than for Good Reason Reason, the Executive's right to the accrued Pension Enhancement calculated based on the Executive's service to the Date of Termination shall become nonforfeitable; and the Executive shall be entitled to a lump sum payment (including death or disabilitybefore taxes) equal to one year's current base salary, plus a 100% target bonus for Executive's salary grade (currently 55% of base salary), this Agreement . The Company shall terminate without further obligation by the Company, other than the obligation to also pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination, the Executive’s 's accrued but unpaid cash compensation (the "Accrued Obligations"), which shall include but not be limited to, (1) the Executive's base salary through the Date of Termination Datethat has not yet been paid and an amount representing a 100% target bonus for the Executive's salary grade for the year of termination, plus multiplied by 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 (the "Annual Bonus Amount"), (2) any accrued paid time offbut unpaid vacation pay, in each case and (3) similar unpaid items that have accrued or to which the Executive has become entitled as of the Date of Termination, including declared but unpaid bonuses and unreimbursed employee business expenses; provided, however, that the Company's obligation to make any payments under this paragraph(a) to the extent any such payment shall not previously paidhave accrued as of the day before the Date of Termination shall also be conditioned upon the Executive's execution, and non-revocation, of a written release, substantially in the form attached hereto as Annex 1 (the "Release"), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive's employment by the Company or the termination thereof (other than any entitlements under the terms of this Agreement to indemnification or under any other plans or programs of the Company in which the Executive participated and under which the Executive has accrued and is due a benefit). As further consideration for the Executive's Release, the Company shall execute a release in favor of Executive, on the date the Release becomes irrevocable, substantially in the form attached hereto as Annex 2.
Appears in 1 contract
Samples: Employment Agreement (Air Products & Chemicals Inc /De/)
Obligations of the Company Upon Termination. 4.1 If (i) Upon the termination of the Executive’s employment under this Agreement: (A) pursuant to the expiration of the Term upon notice of non-renewal of the Term given by the Executive; (B) by the Executive pursuant to Section 5(b)(ii); or (C) by the Company other than for Cause pursuant to Section 5(c)(ii), (iii), (iv), or by the Executive for Good Reason. If during the Employment Period(v), the Company shall terminate have no further obligations hereunder other than (i) the Executive’s accrued but unpaid salary through the date of termination and any other compensation earned but not yet paid as of the date of termination, which shall be paid, in accordance with applicable law, on or before the Company’s next regularly scheduled payday, (ii) any unreimbursed business expenses incurred by the Executive payable in accordance with the Company’s standard expense reimbursement policies, and (iii) benefits owed to the Executive under any qualified retirement plan or health and welfare benefit plan in which the Executive was a participant in accordance with applicable law and the provisions of such plan.
(ii) Upon termination of the Executive’s employment other than under this Agreement, except as provided for Causein Section 5(d)(iii) in the case of a Termination of this Agreement in connection with a “Change in Control” or “Corporate Transaction” (as each such term is defined in the Plan): (A) by the Executive pursuant to Section 5(b)(i), or (B) by the Company pursuant to Section 5(c)(i) or upon notice of non-renewal of the Term given by the Company and, in any such case, provided that the Executive first executes and does not revoke a separation agreement containing a release of claims in the form acceptable to the Company within the time period then-specified by the Company but in any event no later than sixty (60) days after the date of termination (the “Release”), complies with all provisions of the Release (including any non-disparagement and confidentiality provisions), and returns all Company property:
(1) the Company shall pay the Executive an amount equal to twelve (12) months of Executive’s then-current Base Salary (less all applicable deductions) payable in installments in accordance with the then-current generally applicable payroll schedule of the Company commencing on the first regularly scheduled pay date of the Company processed after Executive has executed and delivered to the Company the Release and such Release has become effective according to its terms;
(2) provided that the Executive has been employed for at least six (6) months during the calendar year of the termination of this Agreement, the Company shall pay the Executive an amount equal to the prorated portion (based on the number of days of the Executive’s employment during the year of termination) of the Target Bonus the Executive would have earned under Section 4(b) for the applicable calendar year (less all applicable deductions), payable in a lump sum on the first payroll cycle following January 1 of the year following the year in which this Agreement is terminated. For illustration, if the Executive’s employment is terminated as of September 30 of a year and the Compensation Committee determines that the Executive would be eligible for 70% of the Target Bonus based on the Committee’s assessment of individual and corporate performance during the year of termination, then the amount payable under this Section would be the amount determined by multiplying 75% (i.e., a pro ration reflecting ¾ of the year) by 70% of the Target Bonus for such year;
(3) if the Executive shall terminate employment timely elects continued coverage under COBRA for Good Reason, himself and his covered dependents under the Company’s obligations group health plans following such termination, then the Executive will be entitled to the following COBRA benefits: the Company shall pay the COBRA premiums necessary to continue the Executive’s and his covered dependents’ health insurance coverage in effect for himself (and his covered dependents) on the termination date until the earliest of (i) twelve (12) months following the termination date; (ii) the date when the Executive becomes eligible for health insurance coverage in connection with new employment or self-employment; or (iii) the date the Executive ceases to be eligible for COBRA continuation coverage for any reason, including plan termination (such period from the termination date through the earlier of (i)-(iii), the “Non-CIC COBRA Payment Period”). Notwithstanding the foregoing, if at any time the Company determines that its payment of COBRA premiums on the Executive’s behalf would result in a violation of applicable law (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of paying COBRA premiums pursuant to this Section, the Company shall be as follows:
(a) The Company shall, within thirty business days pay the Executive on the last day of each remaining month of the Termination DateNon-CIC COBRA Payment Period, pay to the Executive a single lump sum fully taxable cash payment equal to the sum of the following amounts:
(i) COBRA premium for such month, subject to the extent not previously paid, the salary and any accrued paid time off through the date of the Change applicable tax withholding. Nothing in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by this Agreement shall deprive the Executive of his rights under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, COBRA or ERISA for benefits under plans and not yet paid policies arising under his employment by the Company;
(iv4) an amount equal each Equity Award held by the Executive at the time of termination shall immediately vest. The Company and the Executive hereby agree that the Equity Awards shall be deemed amended to three the extent necessary to give effect to this provision; and
(35) times the sum Options may be exercised as to any vested shares subject to the Options through the earlier of: (i) the date that is twelve (12) months following the termination of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in ControlContinuous Service, or (ii) the 90-day period immediately preceding original expiration date applicable to each of the Options, unless terminated earlier in accordance with the terms of the Plan and the Option Documents. Except as provided in this Agreement, all terms, conditions and limitations applicable to the Options will remain in full force and effect pursuant to the Plan and the Option Documents. The Company makes no representations or guarantees regarding the status of the Executive’s Termination DateOptions as incentive stock options (ISOs). The Executive understands and agrees if any Option that otherwise qualifies as an ISO is exercised with respect to any vested shares later than the date that is three (3) months following the termination date, such Option will be treated as a non-qualified stock option (“NSO”), and the Executive will be obligated to satisfy his tax obligations that arise when he exercises such Option. No shares of the Company’s common stock will be issued to the Executive in respect of any Options treated as NSOs unless and until the Executive satisfies such tax obligations. The Executive acknowledges that the Company is not providing tax advice to him and that he has been advised by the Company to seek independent tax advice with respect to the exercise and modification of the Options.
(iii) Upon termination of this Agreement within twelve months following a Change in Control or Corporate Transaction: (A) by the Executive pursuant to Section 5(b)(i), or (B) by the Company pursuant to Section 5(c)(i) or upon notice of non-renewal of the Term given by the Company in any such case, the Executive shall be entitled to the following severance benefits, subject to execution and non-revocation of the Release in conformance with the timing requirements set forth in Section 5(d)(ii), compliance with all provisions of the Release (including any non-disparagement and confidentiality provisions), and return of all Company property:
(1) the Company shall pay the Executive an amount equal to eighteen (18) months of the Executive’s then-current Base Salary (less all applicable deductions) payable in a lump sum payment on the first regularly scheduled pay date of the Company processed after the Executive has executed and delivered to the Company the Release and such Release has become effective according to its terms;
(2) the Company shall pay the Executive an amount equal to one and one half (1.5) times the Executive’s Target Bonus amount (less all applicable deductions) payable in a lump sum payment on the first regularly scheduled pay date of the Company processed after the Executive has executed and delivered to the Company the Release and such Release has become effective according to its terms;
(3) if the Executive timely elects continued coverage under COBRA for himself and his covered dependents under the Company’s group health plans following such termination, then the Executive will be entitled to the following COBRA benefits: the Company shall pay the COBRA premiums necessary to continue the Executive’s and his covered dependents’ health insurance coverage in effect for himself (and his covered dependents) on the termination date until the earliest of (i) eighteen (18) months following the termination date; (ii) the date when the Executive becomes eligible for health insurance coverage in connection with new employment or self-employment; or (iii) the date the Executive ceases to be eligible for COBRA continuation coverage for any reason, including plan termination (such period from the termination date through the earlier of (i)-(iii), the “CIC COBRA Payment Period”). Notwithstanding the foregoing, if at any time the Executive obtains comparable coverage under any welfare benefits provided Company determines that its payment of COBRA premiums on the Executive’s behalf would result in a violation of applicable law (including but not limited to the 2010 Patient Protection and Affordable Care Act, as amended by another employerthe 2010 Health Care and Education Reconciliation Act), then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have paying COBRA premiums pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coveragethis Section, the Company shall pay all the Executive on the last day of each remaining month of the required premiums CIC COBRA Payment Period, a fully taxable cash payment equal to the COBRA premium for such month, subject to applicable tax withholding. Nothing in this Agreement shall deprive the Executive and/or of his rights under COBRA or ERISA for benefits under plans and policies arising under his employment by the Executive’s family for the 12 months following the Executive’s Termination Date.Company;
(e4) If each Equity Award held by the Executive elects to convert any group term life insurance to an individual policy, at the time of termination shall immediately vest. The Company shall pay all premiums for 12 months and the Executive shall cease to participate in hereby agree that the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled Equity Awards shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case deemed amended to the extent not previously paidnecessary to give effect to this provision; and
(5) the Executive shall be provided with the enhanced exercise rights described in and pursuant to the terms of Section 5(d)(ii)(5).
Appears in 1 contract
Samples: Executive Employment Agreement (Clearside Biomedical, Inc.)
Obligations of the Company Upon Termination. 4.1 If by the Company other than (a) Other Than for Cause Cause, ------------------------------------------- --------------------- Death or by the Executive for Disability; Good Reason. If If, during the Employment Period, the Company shall terminate -------------------------------- terminates the Executive’s employment 's employment, other than for Cause, death or if Disability, or the Executive shall terminate terminates employment for Good Reason, the Company’s obligations Company shall pay the amounts described in subparagraph (i) below to the Executive in a lump sum in cash within 30 days after the Date of Termination; shall continue the benefits described in subparagraph (ii) below for the period set forth therein; and shall, at the Company's sole expense as incurred, provide the Executive with reasonable outplacement services. The payments and benefits provided pursuant to this Section 5(a) are intended as liquidated damages for a termination of the Executive's employment by the Company other than for Cause, death or Disability or for the actions of the Company leading to a termination of the Executive's employment by the Executive for Good Reason, and shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:sole and exclusive remedy therefor.
(i) The amounts to be paid in a lump sum as described above are:
A. The sum of (1) the extent not previously paid, the salary and any accrued paid time off Executive's Annual Base Salary through the date Date of the Change in Control;
Termination, (ii2) an amount equal to the product of (ix) the average annual bonus earned by the Executive for the calendar year three years immediately preceding prior to the calendar year in which the Change in Control Date of Termination occurs multiplied by (iithe "Bonus Amount") and (y) a fraction, the numerator of which is the number of days employed by the Company during in the calendar year in which the Change in Control occursDate of Termination occurs through the Date of Termination, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum value of the Executive’s 's accrued, but unused, vacation days (based on the Executive's Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (eSalary), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidtheretofore 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) the greater of (A) the number of months and portions thereof from the Date of Termination until the expiration of the Employment Period and (B) twelve (the "Continuation Period"), divided by twelve and (2) the sum of (x) the Executive's Annual Base Salary, (y) the Bonus Amount and (z) the Company's contribution to the Company's Profit Sharing Retirement Plan (or successor plan) with respect to the Executive for the year immediately prior to the year in which the Date of Termination occurs.
(ii) During the Continuation Period, the Executive and/or the Executive's family shall be provided with benefits at least as favorable as those that would have been provided to them under Section 3(c)(ii) of this Agreement if the Executive's employment had continued until the end of the Continuation Period; provided, however, that during any period when the Executive is eligible to receive such benefits under another employer-provided plan, the benefits provided by the Company under this Section 5(a)(ii) may be made secondary to those provided under such other plan. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits, the Executive shall be deemed to have retired upon the end of the Continuation Period.
Appears in 1 contract
Samples: Employment Agreement (KBW Inc)
Obligations of the Company Upon Termination. 4.1 If (a) If, other than during a Protected Period, Executive’s employment is terminated by the Company other than for without Cause (and not due to death or Disability) or by the Executive for with Good Reason. If during the Employment Period, then the Company shall terminate pay or provide to Executive the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amountsfollowing:
(i) A lump sum cash payment consisting of: (A) Executive’s Base Salary through the Date of Termination to the extent not previously theretofore paid; and (B) any annual bonus earned by Executive for a prior award period, but not yet paid to Executive (other than any portion of such annual bonus subject to a prior irrevocable deferral election under any deferred compensation arrangement subject to Section 409A of the salary Code, which portion shall instead be paid in accordance with the applicable deferral arrangement and any accrued paid time off through election thereunder) (the date sum of the Change amounts described in Control;clauses (A) and (B) shall be hereinafter referred to as the “Accrued Obligations”). The Accrued Obligations shall be paid to Executive within 15 days following the Date of Termination.
(ii) Subject to Section 8(e), an amount in cash equal to the product of (iA) 1.5 multiplied by (B) Executive’s Base Salary as in effect immediately prior to such termination, which amount shall be paid to Executive in three equal installments on each of (1) the date that is 55 days following the Date of Termination, (2) the date that is six months following the Date of Termination, and (3) the date that is 12 months following the Date of Termination.
(iii) Subject to Section 8(e), an amount in cash equal to the product of (A) the actual annual bonus for that Executive would have earned (based upon actual performance) in respect of the calendar year immediately preceding the calendar fiscal year in which the Change in Control Date of Termination occurs if Executive had remained employed with the Company and its affiliates through the time such bonuses are paid multiplied by (iiB) a fraction, the numerator of which is the number of days Executive was employed by with the Company and its affiliates during the calendar such fiscal year in which the Change in Control occurs, and the denominator of which is 365;
the number of days in such fiscal year (iii) all amounts previously deferred by the “Prorated Annual Bonus”), which amount shall be paid at the same time annual bonuses are paid to similarly situated executives of the Company; provided, however, that, if Executive has made an irrevocable election under any nonqualified deferred compensation plan sponsored by arrangement subject to Section 409A of the CompanyCode to defer any portion of the annual bonus for the fiscal year in which the Date of Termination occurs, together with any accrued earnings thereonthen for all purposes of this Section 8 (including this Section 8(a)(iii) and Section 8(b)(iii)), such deferral election, and not yet paid by the Company;terms of the applicable arrangement, shall apply to the same portion of the Prorated Annual Bonus and such portion shall be considered an Other Benefit (as defined below).
(iv) Subject to Section 8(e), an amount in cash equal to three the product of (3A) times 1.67 multiplied by (B) the sum of (1) the excess of the monthly cost (as of the Date of Termination) to provide Executive and Executive’s Annual Base Salary dependents with continuation coverage under the health plan in which Executive was eligible to participate as of the Date of Termination under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) over the monthly employee contribution paid by Executive for such coverage prior to the Date of Termination, plus (2) the monthly cost of providing Executive with coverage under the Company’s executive medical benefit program as of the Date of Termination, multiplied by (C) 18, with such amount to be paid on the 55th day following the Date of Termination.
(v) Subject to Section 8(e), reasonable outplacement services in an amount not to exceed $20,000; provided that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination.
(vi) To the extent not theretofore paid or provided, the Company shall timely pay or provide to Executive any other amounts or benefits required to be paid or provided or that Executive is eligible to receive under any plan, program, policy, practice, contract, or agreement of the Company and its affiliates through the Annual BonusDate of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
(b) If, during a Protected Period, Executive’s employment is terminated by the Company without Cause (and not due to death or Disability) or by Executive with Good Reason, then the Company shall pay or provide to Executive the following:
(i) The Accrued Obligations, which shall be paid to Executive shall become fully vested within 15 days following the Date of Termination.
(ii) Subject to Section 8(e), an amount in any and all stock incentive awards granted cash equal to the Executive under any plan or otherwise which have not become exercisable product of (A) 2.0 multiplied by (B) the sum of (1) Executive’s Base Salary as in effect immediately prior to such termination (or, if higher, as in effect immediately prior to the consummation of the date of the Change in Control and all stock options (including options vested as of the applicable Change in Control) shall remain exercisable until and (2) Executive’s Target Bonus as in effect immediately prior to such termination (or, if higher, as in effect immediately prior to the consummation of the applicable option expiration date. All forfeiture conditions Change in Control), which amount shall be paid to Executive in a lump sum on the 55th day following the Date of Termination; provided that as of a in the event the applicable Change in Control are applicable to any stock optionis not a “change in control event” within the meaning of Section 409A of the Code and the Treasury Regulations thereunder, deferred stock unit, restricted stock or restricted share units awarded then a portion of such amount equivalent to the amount that would have been payable to Executive under Section 8(a)(ii) upon a qualifying termination event thereunder shall (rather than be being paid on such 55th day) be paid on the same schedule as contemplated by Section 8(a)(ii); and provided, further, that, in the Company event the applicable Change in Control is a “change in control event” within the meaning of Section 409A of the Code and the Treasury Regulations thereunder, $550,000 of such amount shall lapse immediately(rather than being paid on such 55th day) be paid in two equal installments on the date that is six months following the Date of Termination and the date that is 12 months following the Date of Termination (in each case, with interest at the short-term rate under Section 1274(d) of the Code in effect as of the Date of Termination, from the 55th day following the Date of Termination through the date of payment).
(iii) Subject to Section 8(e) and the proviso set forth in Section 8(a)(iii), an amount in cash equal to the Prorated Annual Bonus; provided that such amount shall be determined based upon Executive’s Target Bonus as in effect immediately prior to the Date of Termination (or, if higher, as in effect immediately prior to the consummation of the applicable Change in Control), rather than actual performance, and shall be paid on the 55th day following the Date of Termination.
(iv) Subject to Section 8(e), an amount in cash equal to the product of (A) 1.67 multiplied by (B) the sum of (1) the excess of the monthly cost (as of the Date of Termination) to provide Executive and Executive’s dependents with continuation coverage under the health plan in which Executive was eligible to participate as of the Date of Termination under COBRA over the monthly employee contribution paid by Executive for such coverage prior to the Date of Termination, plus (2) the monthly cost of providing Executive with coverage under the Company’s executive medical benefit program as of the Date of Termination (or, if greater, as of immediately prior to the consummation of the applicable Change in Control), multiplied by (C) 24, with such amount to be paid on the 55th day following the Date of Termination.
(v) Subject to Section 8(e), reasonable outplacement services in an amount not to exceed $20,000; provided that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination.
(vi) The Other Benefits, as set forth in Section 8(a)(vi).
(c) Except as provided If Executive’s employment is terminated due to Executive’s death or Disability, then the Company shall pay or provide Executive (or, if applicable, Executive’s estate or beneficiaries) the Accrued Obligations, the Prorated Annual Bonus, and the Other Benefits, at the time or times set forth in subsections Sections 8(a)(i), 8(a)(iii), and 8(a)(vi), respectively, and shall have no other severance obligations under this Agreement.
(d) If the Term and (e), for a one year period following the Executive’s termination of employmentemployment is terminated by the Company with Cause or by Executive without Good Reason, then the Company shall arrange pay or provide Executive the Accrued Obligations and the Other Benefits, at the time or times set forth in Sections 8(a)(i) and 8(a)(vi), respectively, and shall have no other severance obligations under this Agreement.
(e) As a condition to the Company’s obligation to pay or provide the amounts or benefits set forth in Sections 8(a)(ii), 8(a)(iii), 8(a)(iv), 8(a)(v), 8(b)(ii), 8(b)(iii), 8(b)(iv), and 8(b)(v) Executive shall:
(i) Within 45 days following the Date of Termination, execute and his family welfare benefits deliver (includingand not subsequently revoke) a Separation and Release Agreement in substantially the form attached hereto as Exhibit A.
(ii) Comply with Sections 11 and 12; provided that this Section 8(e)(ii) shall not apply during a Protected Period, without limitationit being understood that this proviso is simply a limitation of remedies and does not release Executive from Executive’s obligation to comply with Sections 11 and 12 during a Protected Period.
(f) Upon any termination of Executive’s employment with the Company for any reason, medicalExecutive shall promptly resign from any position as an officer, dentaldirector, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans or fiduciary of the Company applicable with respect to the Executive and his family during either the or any of its affiliates.
(ig) 90-day period immediately preceding the Change Nothing in Controlthis Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy, or (ii) practice provided by the 90-day period immediately preceding the Executive’s Termination DateCompany or its affiliates and for which Executive may qualify. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the receives payments and benefits provided in this pursuant to Section 4.1.
4.2 If by 8(a) or 8(b), Executive shall not be entitled to any severance pay or benefits under any severance plan, program, or policy of the Company for Cause or by the Executive other than for Good Reason. Ifand its affiliates, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), unless otherwise specifically provided therein in a specific reference to this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidAgreement.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive in a single lump sum in cash payment equal to within 30 days after the Date of Termination the sum of (1) the following amounts:
(i) Executive's Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, the salary and any accrued paid time off through the date of the Change in Control;
; (ii2) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Target Bonus Amount and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three ; (3) times any accrued vacation pay to the extent not theretofore paid; and (4) the Executive's Supplemental Salary, if applicable, for periods through the Date of Termination, to the extent not theretofore paid (the sum of the Executive’s Annual Base Salary amounts described in clauses (1), (2), (3) and (4) shall be hereinafter referred to as the Annual Bonus.
"Accrued Obligations"); (bii) The the Executive shall become fully vested in any receive Retirement Benefits (as defined below) from and all stock incentive awards granted to after the Executive under any plan or otherwise which have Date of Termination on the following basis: (A) if he has not become exercisable reached the age of 55 as of the date Date of the Change in Control and all stock options (including options vested as of the Change in Control) Termination, he shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e)be deemed, for a one year period following the Executive’s termination purposes of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable all determinations with respect to the Executive Retirement Benefits, to have attained the age of 55 as of the Date of Termination, and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount years of coverage required to be provided by the Company hereunder service shall be reduced by increased as if he had been employed for an additional a number of years of service (and fractions thereof) equal to the amount number of coverage provided by such other employer’s welfare years (and fractions thereof) from the Date of Termination through his 55th birthday; (B) "Retirement Benefits" shall mean (x) qualified defined benefit plans.
retirement benefits and excess or supplemental retirement benefits, together with (dy) The Executive’s rights under this Section shall be in addition to retiree medical, long-term disability, dental, accidental death and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums dismemberment and life insurance benefits for the Executive and/or the Executive’s family for 's dependents, in each case in accordance with the 12 months following plans, programs, practices and policies as may be in effect at the Executive’s Termination Date.
(e) If Date of Termination; provided, that in no event shall any such benefits be less favorable than those that the Executive elects (and his dependents, if applicable) would have received under PanEnergy's qualified and nonqualified retirement plans and retiree medical and other welfare benefit plans as in effect at the Effective Time ("Current Plans"), if the Current Plans had remained in effect without amendment as of the Date of Termination and the Executive had been eligible to convert retire under the Current Plans as of the Date of Termination; and (C) the Company may elect to provide any group term life insurance or all of the Retirement Benefits (other than those actually provided from qualified plans) through individual arrangements or otherwise not through Company-sponsored plans, so long as the net after-tax Retirement Benefits provided to an individual policythe Executive and his dependents are not less than they would have enjoyed had they received such Retirement Benefits under Company-sponsored plans; and (iii) to the extent not theretofore paid or provided, the Company shall timely pay all premiums for 12 months and or provide to the Executive shall cease any other amounts or benefits required to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive be paid or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to provided or which the Executive may be entitled shall be read is eligible to refer receive with respect to such subsidiary.
(h) If the Executive’s employment with Deferred Account or under any plan, program, policy or practice or contract or agreement of the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments Date of Termination (such other amounts and benefits provided in this Section 4.1shall be hereinafter referred to as the "Other Benefits").
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by the (a) By Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, Death or if the Disability or Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows::
(a) The subject to Section 11(l), the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
(i) the sum of (1) Executive’s Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, (2) Executive’s business expenses that are reimbursable pursuant to Section 3(b)(v) but have not been reimbursed by the salary and Company as of the Date of Termination; (3) Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; (4) any accrued vacation pay to the extent not theretofore paid time off through (the date sum of the Change amounts described in Control;
subclauses (ii1), (2), (3) and (4), the “Accrued Obligations”); and (5) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Recent Bonus and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;365 (the “Pro Rate Bonus”); provided, that notwithstanding the foregoing, if Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the Annual Base Salary or the Annual Bonus described in clauses (1) or (3) above, then for all purposes of this Section 5 (including Sections 5(b) through 5(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clause (1) or clause (3), and such portion shall not be considered as part of the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined below); and
(ii) the amount equal to the product of (1) two and (2) the sum of (x) Executive’s Annual Base Salary and (y) the Recent Bonus;
(iii) all amounts previously deferred by an amount equal to Company and its Affiliates contributions under the Executive under tax-qualified defined contribution plan and any nonqualified deferred compensation plan excess or supplemental defined contribution plans sponsored by the CompanyCompany or its Affiliates, together with any accrued earnings thereonin which Executive participates as of immediately prior to the Date of Termination (or, if more favorable to Executive, the plans as in effect immediately prior to the Effective Date) (collectively, the “Savings Plans”) that Executive would receive if Executive’s employment continued for the two-year period following the Date of Termination (the “Benefits Period”), assuming for this purpose that (A) Executive is fully vested in the right to receive employer contributions under such plans; (B) Executive’s compensation during each year of the Benefits Period is equal to the Annual Base Salary and the Recent Bonus, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (C) Executive received an Annual Bonus with respect to the year in which the Date of Termination occurs equal to the Pro Rata Bonus, only if a contribution in respect of the compensation described in this clause (C) has not yet paid by already been credited to Executive under the Company;Savings Plans; (D) the amount of any such employer contributions is equal to the maximum amount that could be provided under the terms of the applicable Savings Plans for the year in which the Date of Termination occurs (or, if more favorable to Executive, or in the event that as of the Date of Termination the amount of any such contributions for such year is not determinable, the amount of contribution that could be provided under the Savings Plans for the plan year ending immediately prior to the Effective Date) for a participant whose compensation is as provided in clauses (B) and (C) above; and (E) to the extent that the employer contributions are determined based on the contributions or deferrals of Executive, disregarding Executive’s actual contributions or deferral elections as of the Date of Termination and assuming that Executive had elected to participate in the Savings Plans and to defer that percentage of Annual Base Salary and/or Annual Bonus under the Savings Plans that would result in the maximum possible employer contribution
(iv) an amount equal to three the product of (3A) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(bx) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as 150% of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), monthly premiums for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided coverage under the most favorable welfare Company’s or and its Affiliates health care plans for purposes of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable continuation coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code with respect to the maximum level of coverage in effect for Executive and his or her spouse and dependents as of immediately prior to the Date of Termination, and (“COBRA Continuation Coverage”). If y) 150% of the monthly premium for coverage (based on the rate paid by the Company and its Affiliates for active employees) under the life insurance plans of the Company and its Affiliates, in each case, based on the plans and at the levels of participation in which Executive elects participates as of immediately prior to receive COBRA Continuation Coveragethe Date of Termination (or, if more favorable to Executive, the Company shall pay all plans as in effect immediately prior to the Effective Date), and (B) the number of months in the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.Benefits Period;
(eb) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, expense as incurred, pay on behalf provide Executive with outplacement services the scope and provider of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm which shall be selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately Company prior to the Change in ControlEffective Date; provided, further, that such outplacement benefits shall end not later than the Executive has been on last day of the payroll of, and participated second calendar year that begins after the Date of Termination; and
(c) except as otherwise set forth in the incentive or employee benefit plans oflast sentence of Section 6, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidtheretofore paid or provided, the Company shall timely pay or provide to Executive any other amounts or benefits required to be paid or provided or that Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its Affiliates (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”) in accordance with the terms of the underlying plans or agreements. Without limiting the generality of the foregoing, Executive shall be entitled to all rights and benefits set forth in the plans and agreements governing Executive’s outstanding equity awards.
Appears in 1 contract
Samples: Change in Control Employment Agreement (Dime Community Bancshares, Inc. /NY/)
Obligations of the Company Upon Termination. 4.1 If by the Company other than for Cause or by (a) By the Executive for Good Reason; By the Company Other Than for Cause, Death or Disability. If If, during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, Death or if Disability or the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(ai) The the Company shall, within thirty business days of the Termination Date, shall pay to the Executive in a single lump sum in cash payment equal to within 30 days after the sum Date of Termination the aggregate of the following amounts:
(iA) the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not previously theretofore paid, (2) the salary and Executive’s business expenses that are reimbursable pursuant to Section 4(b)(v) but have not been reimbursed by the Company as of the Date of Termination; (3) the Executive’s Annual Bonus for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been determined but not paid as of the Date of Termination; (4) any accrued vacation pay to the extent not theretofore paid time off through (the date sum of the Change amounts described in Control;
subclauses (ii1), (2), (3) and (4), the “Accrued Obligations”) and (5) an amount equal to the product of (ix) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by Recent Average Bonus and (iiy) a fraction, the numerator of which is the number of days employed by in the Company during current fiscal year through the calendar year in which the Change in Control occursDate of Termination, and the denominator of which is 365;365 (the “Pro Rata Bonus”); provided that notwithstanding the foregoing, if the Executive has made an election to defer any portion of the Annual Base Salary or the Annual Bonus described in clauses (1) or (3) above, then for all purposes of this Section 6 (including, without limitation, Sections 6(b) through 6(d)), such deferral election, and the terms of the applicable arrangement shall apply to the same portion of the amount described in such clause (1) or clause (3), and such portion shall not be considered as part of the “Accrued Obligations” but shall instead be an “Other Benefit” (as defined below); and
(iiiB) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three the product of (31) times one and one half and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Annual Recent Average Bonus.;
(bii) The Executive shall become fully vested in any all share options and all stock incentive other equity-based awards granted to held by the Executive under immediately shall vest and (in the case of share options) remain exercisable for the remainder of their terms, and any plan performance conditions relating to those share options or otherwise which other equity-based awards shall be deemed to have not become exercisable been satisfied at the greater of target performance levels and actual performance (annualized for the full performance period) as of the date Date of Termination;
(iii) the Company shall provide the Executive with the additional contributions that would have been made on the Executive’s behalf in the pension and retirement plans of the Change Company and its affiliated companies in Control which the Executive participates, plus the additional amount of any benefit the Executive would have accrued under any excess or supplemental retirement plan of the Company and all stock options its affiliated companies in which the Executive participates, in each case, that the Executive would have received if the Executive’s employment had continued for 12 months after the Date of Termination; provided, however, if any contribution or participation limits would prevent the Executive from receiving the full value of the benefits contemplated hereunder, any portion of the benefits that cannot be provided under the applicable benefit plans shall instead be paid in a lump sum in cash within 30 days after the Date of Termination;
(including options vested iv) the Executive shall be permitted to continue participating in the medical plan of the Company and its affiliated companies in which the Executive participated as of the Change in Control) Date of Termination for 12 months after the Date of Termination; provided, however, if any participation limits would prevent the Executive from receiving the benefits contemplated hereunder, the Executive shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded instead receive an amount equal to the Executive by cost of premiums for continued participation in the medical plan of the Company shall lapse immediately.
(c) Except as provided and its affiliated companies with respect to the maximum level of coverage in subsections (d) and (e), effect for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life or her spouse and group life insurance benefits) which are at least as favorable as those provided under dependents on the most favorable welfare plans Date of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and after the Executive Date of Termination, which amount shall cease to participate be paid in a lump sum in cash within 30 days after the Company’s group term life insurance.Date of Termination;
(fv) The the Company shall, at its sole expense, expense as incurred, pay on behalf provide the Executive with outplacement services the scope and provider of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm which shall be selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with sole discretion, but the Company as a common law employee is terminated by cost thereof shall not exceed $40,000; provided, further, that such outplacement benefits shall end not later that the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement last day of the Executive second calendar year that begins after the Date of Termination; and
(vi) except as a consultantotherwise set forth in the last sentence of Section 7, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paidtheretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or that the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”) in accordance with the terms of the underlying plans or agreements.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Aspen Insurance Holdings LTD)
Obligations of the Company Upon Termination. 4.1 If by (a) By the Company other than Other Than for Cause Cause, Death, Disability or Non-Extension of the Employment Period or by the Executive for Good Reason. If If, during the Employment Period, the Company shall terminate the Executive’s employment with the Company is terminated by the Company other than for Cause, death, Disability or if non-extension of the Employment Period or by the Executive shall terminate employment for Good Reason, the Company’s obligations Company shall pay or provide to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amountsExecutive:
(i) The Executive’s “Accrued Obligations” which include, to the extent not previously theretofore paid, :
(A) the salary and any accrued paid time off Executive’s Annual Base Salary earned through the date Date of the Change in ControlTermination;
(B) the Executive’s Benefits, including accrued vacation pay, vested or earned through the Date of Termination;
(C) the Executive’s Annual Incentive Award for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs if such award has been earned but has not been paid as of the Date of Termination;
(D) the Executive’s vested awards, if any, under the Long-Term Incentive Programs; and
(E) 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.
(ii) The following severance benefits, subject to the Executive signing and not revoking a release of claims within the timeframe and in the form prescribed by the Company; provided that, such release shall not require the Executive to release any rights to Accrued Obligations, indemnification described in Section 8 or any amount of such severance benefits solely by signing and continuing to comply with such release and this Agreement:
(A) an amount equal to one and a half (1.5) times the product of Executive’s Annual Base Salary described in Section 2(b)(i);
(iB) an amount equal to one and a half (1.5) times the Executive’s Target Annual Incentive Award described in Section 2(b)(ii);
(C) the annual bonus Annual Incentive Award that the Executive would have earned, if any, for the calendar year immediately preceding the calendar fiscal year in which the Change in Control Date of Termination occurs (as determined by the Company after the end of such fiscal year when other Annual Incentive Awards are determined), multiplied by (ii) a fraction, the numerator of which is the number of days the Executive was employed by the Company during the calendar fiscal year in which the Change in Control Date of Termination occurs, and the denominator of which is three hundred sixty five (365) (the “Pro Rata Annual Incentive Award”);
(iiiD) all amounts previously deferred unvested awards held by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive Long-Term Incentive Programs shall become fully vested and each such award, and each already vested award described in any Section 4(a)(i)(D), which is a stock option shall continue to be exercisable for the remainder of its term;
(E) the premium costs for medical, dental and all stock incentive awards granted vision coverage under the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”), for the Executive and, where applicable, his spouse or dependents, to the extent elected by the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e)plans, for a one year period ending on the earlier of (1) twelve (12) months following the Executive’s termination Date of employment, the Company shall arrange to provide the Executive Termination and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii2) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if date on which the Executive obtains comparable coverage under any welfare benefits provided by another employment with a new employer; and
(F) outplacement services, then the amount scope and provider of coverage required to be provided by the Company hereunder which shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with sole discretion, provided that the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement cost of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company such outplacement shall not prohibit exceed $15,000; and provided, further, that such outplacement benefits shall be reasonable and shall end on the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason earlier of (including death or disability1), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time off, in each case to the extent not previously paid.
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Obligations of the Company Upon Termination. 4.1 If (a) By Executive for Good Reason or by the Company other than for Cause or by the Executive for Good Reason. If during the Employment Period, the Company shall terminate the Executive’s employment other than for Cause, Death or if the Executive shall terminate employment for Good Reason, the Company’s obligations to the Executive shall be as follows:
(a) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment equal to the sum of the following amounts:
(i) to the extent not previously paid, the salary and any accrued paid time off through the date of the Change in Control;
(ii) an amount equal to the product of (i) the annual bonus for the calendar year immediately preceding the calendar year in which the Change in Control occurs multiplied by (ii) a fraction, the numerator of which is the number of days employed by the Company during the calendar year in which the Change in Control occurs, and the denominator of which is 365;
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued earnings thereon, and not yet paid by the Company;
(iv) an amount equal to three (3) times the sum of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (d) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (ii) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, the Company terminates the shall terminate Executive’s employment for Cause or if the Executive terminates employment other than for Cause, death or Disability or Executive shall terminate employment for Good Reason (including death or disability), this Agreement a “Qualifying Termination”):
(i) The Company shall terminate without further obligation by the Company, other than the obligation to pay to Executive the Executive aggregate of the following amounts in a lump sum in cash within 30 days after the Date of Termination: the sum of (A) Executive’s unpaid salary Annual Base Salary through the Date of Termination Date, plus any accrued paid time off, in each case to the extent not previously theretofore paid, (B) Executive’s business expenses that are reimbursable pursuant to Section 1(c)(v) but have not been reimbursed by the Company as of the Date of Termination; (C) any accrued vacation pay to the extent not theretofore paid; and (D) any reimbursements to which Executive is entitled under Section 1(c)(iv)-(v) (the sum of the amounts described in subclauses (A), (B), (C), and (D) the “Accrued Obligations”). In addition the Company shall pay to Executive any vested benefits or vested equity benefits in accordance with terms of the applicable agreement or plan.
(ii) Subject to Section 3(c) and Executive’s compliance with Section 4, starting as of the next applicable Company payroll date after the Date of Termination:
A. If the Qualifying Termination occurs outside of the Change in Control Protection Period (as defined below), the Company will pay Executive a monthly amount equal to $168,750, until the 18-month anniversary of the Date of Termination, such payments to be made in accordance with the payroll practices of the Company in effect on the Date of Termination.
B. If the Qualifying Termination occurs during the 24-month period following a Change of Control (as defined in the Quorum Health Corporation 2016 Stock Award Plan) (the “Change in Control Protection Period”) and the Change of Control constitutes a change in ownership or effective control, or a change in the ownership of a substantial portion of the assets, of the Company under Section 409A of the Code (a “409A CIC”), the Company will pay Executive a lump sum payment in the amount of equal to $6,075.000 on the sixtieth day following Executive’s Qualifying Termination.
C. If the Qualifying Termination occurs during the Change in Control Protection Period and the Change of Control does not constitute a 409A CIC, the Company will pay Executive a monthly amount equal to $168,750, until the 36-month anniversary of the Date of Termination, such payments to be made in accordance with the payroll practices of the Company in effect on the Date of Termination. Should Executive commit a material violation of the Executive Covenants, the Company may cease making any payments described in this Section 3(a)(ii), in addition to any other remedies available to the Company, provided, however, that prior to ceasing making any such payments the Company shall have first provided the Executive with written notice of any such alleged material breach (including reasonable details describing such alleged breach), and the Executive shall have failed to cure such breach within a five (5) day period thereafter. Other than as set forth in this Section 3(a), and with respect to the equity awards referenced in Section 1(c)(vi), in the event of a Qualifying Termination, the Company and its affiliates shall have no further obligation to Executive.
Appears in 1 contract
Obligations of the Company Upon Termination. 4.1 If by the Company other (a) Good Reason or Other than for Cause Cause, Death or by the Executive for Good ReasonDisability. If If, during the Employment PeriodTerm, the Company shall terminate the Executive’s 's employment other than for Cause, death or if Disability, or the Executive shall terminate employment for Good Reason, in each case, other than under the Company’s obligations circumstances contemplated by Section 4(b), the Company shall pay or provide to the Executive shall be the following payments or benefits as followsspecified below:
(ai) The Company shall, within thirty business days of the Termination Date, pay to the Executive a single lump sum cash payment within ten (10) days after the Date of Termination equal to the Executive's accrued and unpaid Annual Base Salary through the Date of Termination (the "Accrued Obligations"); and
(ii) (severance payments and benefits consisting of (A) a cash severance payment equal to the sum of the following amounts:
(ix) to the extent not previously paid, the salary and any accrued paid time off through the date his Annual Base Salary as of the Change in Control;
Date of Termination plus (iiy) an amount equal to the product of his Target Short-Term Incentive Opportunity (iwithout proration) the annual bonus for the calendar year immediately preceding the calendar year in which the Date of Termination occurs and (B) such benefits (other than the Base Severance and Severance Bonus) as would have been payable or provided under the CIT Employee Severance Plan (as in effect on the Effective Date) upon an "Eligible Termination of Employment (other than a "Change of Control Termination)," as such term is used in Control occurs multiplied by (ii) the CIT Employee Severance Plan), as if the Executive were a fraction, the numerator of which is the number of days employed by the Company during the calendar year participant in which the Change in Control occurssuch plan as a "Level 1 Employee" thereunder, and all payments and benefits contemplated by clauses (A) and (B) shall be payable in accordance with and subject to the denominator terms and conditions of which is 365;the CIT Employee Severance Plan (including execution and non-revocation of the Release); and
(iii) all amounts previously deferred by the Executive under any nonqualified deferred compensation plan sponsored by shall be entitled to (A) the Company, together with any accrued earnings thereon, and not yet paid by Additional ERP Credit (if the Company;
(iv) an amount equal Date of Termination occurs prior to three (3) times the sum completion of the Executive’s Annual Base Salary and the Annual Bonus.
(b) The Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any plan or otherwise which have not become exercisable as of the date of the Change in Control and all stock options (including options vested as of the Change in Control) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of a Change in Control are applicable to any stock option, deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company shall lapse immediately.
(c) Except as provided in subsections (dTransaction) and (e), for a one year period following the Executive’s termination of employment, the Company shall arrange to provide the Executive and his family welfare benefits (including, without limitation, medical, dental, health, disability, individual life and group life insurance benefits) which are at least as favorable as those provided under the most favorable welfare plans of the Company applicable with respect to the Executive and his family during either the (i) 90-day period immediately preceding the Change in Control, or (iiB) the 90-day period immediately preceding the Executive’s Termination Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any welfare benefits provided by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer’s welfare benefit plans.
(d) The Executive’s rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code (“COBRA Continuation Coverage”). If the Executive elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s family for the 12 months following the Executive’s Termination Date.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company’s group term life insurance.
(f) The Company shall, at its sole expense, as incurred, pay on behalf of Executive up to $25,000 in fees and costs charged by a nationally recognized outplacement firm selected by the Executive to provide outplacement service for one year after the Termination Date.
(g) To the extent that immediately prior to the Change in Control, the Executive has been on the payroll of, and participated in the incentive or employee benefit plans of, a subsidiary of Cornerstone, the references to the Company contained in this Agreement referring to benefits to which the Executive may be entitled shall be read to refer to such subsidiary.
(h) If the Executive’s employment with the Company as a common law employee is terminated by the Company other than for Cause or by the Executive for Good Reason, the Company’s re-engagement of the Executive as a consultant, an advisor or otherwise as an independent contractor to the Company shall not prohibit the Executive from receiving the payments and benefits provided in this Section 4.1.
4.2 If by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, the Company terminates the Executive’s employment for Cause or if the Executive terminates employment other than for Good Reason (including death or disability), this Agreement shall terminate without further obligation by the Company, other than the obligation to pay to the Executive in cash the Executive’s unpaid salary through the Termination Date, plus any accrued paid time offTransaction Success Award, in each case case, as provided under, and subject to the extent not previously paidterms and conditions set forth in, Section 2(b)(v) or 2(c)(iii), as applicable.
Appears in 1 contract
Samples: Employment Agreement (Cit Group Inc)
