Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period: (i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (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 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, 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"); and (ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 4 contracts
Samples: Executive Employment Agreement (Pogo Producing Co), Executive Employment Agreement (Pogo Producing Co), Executive Employment Agreement (Pogo Producing Co)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood ------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment ------------------------------------------------- Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the higher of (I) the Recent Annual Bonus and (2II) 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 (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three and (2ii) 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 CompanyHighest Annual Bonus; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect during each of the 90-day period immediately preceding the Applicable Datethree years is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii2) for three years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its the affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion;
(4) any unvested stock options and restricted stock granted on or prior to the date hereof shall become immediately vested and exercisable; and
(iii5) 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 that 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 the 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 benefits, the "Other Benefits").
Appears in 4 contracts
Samples: Employment Agreement (National Commerce Bancorporation), Employment Agreement (National Commerce Bancorporation), Employment Agreement (National Commerce Bancorporation)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability (and other than a termination due to death) or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) the Special Bonus, if due to the Executive pursuant to Section 4(b)(iii), to the extent not theretofore paid and (24) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) shall be hereinafter referred to as at 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 one and one-half (1.5) 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 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, 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")Highest Annual Bonus; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv4(b)(v) 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 peer executives and their families during the 90-day period immediately preceding the Applicable DateEffective 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 applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive for retiree retirement 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 peer executives and their families during the 90-day period immediately preceding the Applicable Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 4 contracts
Samples: Management Continuity Agreement (Software Spectrum Inc), Management Continuity Agreement (Software Spectrum Inc), Management Continuity Agreement (Software Spectrum Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, ------------------------------------------------------ during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the The sum of (1l) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid previously paid, (2) the product of (x) the Recent Average Bonus and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore previously paid (the sum of the amounts described in clauses (1) ), (2), and (23) 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 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, 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"); andRecent Average Bonus.
(ii) for For one year after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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 accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other senior executives 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 Datefamilies, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits eligibility, and for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until one year after the end Date of the Employment Period Termination and to have retired on the last day of such period; and;
(iii) to the extent not theretofore previously 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 3 contracts
Samples: Change of Control Employment Agreement (Calgene Inc /De/), Change of Control Employment Agreement (Calgene Inc /De/), Change of Control Employment Agreement (Calgene Inc /De/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during a Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the a Window Period:
(i) the Company shall pay or provide to or in respect of the Executive the aggregate of the following amounts and benefits:
A. 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 Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the highest annual bonus paid or accrued for the benefit of Executive during the three year period preceding the Date of Termination and (2y) a fraction, the numerator of which is the number of days since the date of the last bonus payment through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred or earned by the Executive (together with any accrued interest or earnings thereon) ), any unreimbursed expenses and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (23) shall be hereinafter referred to as the "Accrued ObligationsObligation"); and
B. in a lump sum in cash within 30 days after the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to Date of Termination the product of (1) three and (2) multiplying the factor of 3.75 times the sum of (x) the Executive's highest Annual Base Salary and (y) any the highest annual bonus described in Section 4(b)(ii) paid or which has been 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 within the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. past three years (including such salary and bonus paid by 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 previous employer which is a direct subsidiary of the Company and its affiliated companies providing benefits for as of 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) date of this Agreement 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, 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 Executiveone year'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"); andservice.
(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)(iv2(b)(iii) 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 on the 90-day period immediately preceding Effective Date or, if more favorable to the Applicable DateExecutive, provided, however, that if as in effect generally at any time thereafter with respect to other executives of the Executive becomes reemployed with another employer Company and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical its affiliated companies and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility their families (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 policiespolicies and for purposes of determining Vesting Service (as defined in the Reading & Bates Pension Plan) under the Reading & Bates Pension Plan and xxx Reading & Bates Benefits Repxxxxxent Plan, the Executive shall be considered xxxxxdered 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 3 contracts
Samples: Employment Agreement (R&b Falcon Corp), Employment Agreement (R&b Falcon Corp), Employment Agreement (R&b Falcon Corp)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEBy Executive for Good Reason or By the Company other than for Cause, DEATH OR DISABILITYDeath or Disability Not During the Change In Control Period. If, during the Employment Period, the Company shall terminate the terminates Executive's ’s employment without Cause (other than for Cause due to death or Disability 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 the Executive shall terminate terminates employment either for Good Reason Reason, and, in each case, Executive is not entitled to any amounts or without any reason during the Window Period:benefits pursuant to Section 4(b):
(i) the The Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, subject to Section 10(b), the aggregate of the following amounts:
A. : the sum of (1A) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid 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 (2C) any compensation previously deferred by Executive’s Annual Bonus for the Executive (together with any accrued interest or earnings thereon) and any accrued vacation payfiscal year immediately preceding the fiscal year in which the Date of Termination occurs, in each case if such Annual Bonus has been determined to have been earned but has not been paid as of the extent not theretofore paid Date of Termination (the sum of the amounts described in clauses subclauses (1) A), (B), and (2) shall be hereinafter referred to as C), the "“Accrued Obligations"”); and;
B. (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 (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of obtained by multiplying (1A) three and 1.5 by (2B) the sum of (x) the Executive's ’s Annual Base Salary and (ywithout regard to any reduction thereto);
(iii) any bonus described in Subject to Section 4(b)(ii) paid or payable in respect 10(b), on the 61st day after the Date of Termination, the most recently completed fiscal year of the Company; andCompany shall, provided furthersubject to Section 4(e), 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 pay 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 cash amount equal in value 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 remainder of the Employment Period, assuming for this purpose that all ’s 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)but unvested benefits, if any, under the Retirement Company’s Deferred Supplemental Compensation Plan and as of the SERP (the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount")Termination; and
(iiiv) 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 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 by the Company without Cause (other than due to death or Disability), including by providing notice to 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 Section 3(a) that the Employment Period will not be extended, and the Employment Period is terminated, or by Executive for Good Reason, in each case where Section 4(b) does not apply, the Company shall have no further obligation to Executive under this Agreement 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 (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 sum of (A) the product of (1) 1.5 multiplied by (2) Executive’s Annual Base Salary (without regard to any reduction thereto), plus (B) the product of 1 multiplied by Executive’s target Annual Bonus for the year in which Executive’s termination of employment occurs (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 any planthe Company’s Deferred Supplemental Compensation Plan as of the Date of Termination;
(iv) Subject to Section 4(e), programautomatic vesting in full (to the extent not previously vested) of all time-vested or performance-vested restricted stock, policy RSUs or practice or contract or agreement similar rights to acquire capital stock of the Company and its affiliated companies 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 effect and applicable generally 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 other executives and their families during death or Disability), including by providing notice to Executive pursuant to Section 3(a) that the 90-day Employment Period will not be extended, or by Executive for Good Reason, in each case within a period immediately preceding of two years after a Change in Control, the Applicable Date (such other amounts and benefits Company shall be hereinafter referred have no further obligation to as the "Other Benefits")Executive under this Agreement.
Appears in 3 contracts
Samples: Executive Employment Agreement (Vse Corp), Executive Employment Agreement (Vse Corp), Executive Employment Agreement (Vse Corp)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Executive for Good Reason; OTHER THAN FOR CAUSEBy the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause Cause, Death or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2) any compensation previously deferred the Executive’s business expenses that are reimbursable pursuant to Section 4(b)(v) but have not been reimbursed by the Executive Company as of the Date of Termination; (together with any accrued interest or earnings thereon3) and 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, in each case pay to the extent not theretofore paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the “Accrued Obligations”) and (5) an amount equal to the product of (x) the Recent Average 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 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 (21) or clause (3), and such portion shall not be hereinafter referred to considered as part of the "“Accrued Obligations"” but shall instead be an “Other Benefit” (as defined below); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three two and (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) any bonus described in Section 4(b)(iithe Recent Average Bonus;
(vi) 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 all share options and other amount of severance relating to salary or bonus continuation to be received equity-based awards held by the Executive upon termination immediately shall vest and (in the case of employment share options) remain exercisable for the remainder of their terms, and any performance conditions relating to those share options or other equity-based awards shall be deemed to have been satisfied at the greater of target performance levels and actual performance (annualized for the full performance period) as of the Date of Termination;
(vii) 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 Company and its affiliated companies in which the Executive participates, plus the additional amount of any benefit the Executive would have accrued under any severance plan, severance policy excess 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") in which the Executive participates, in each case, that the Executive would receive have received if the Executive's ’s employment had continued at for 12 months after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for Termination; provided, however, if any contribution or participation limits would prevent the remainder Executive from receiving the full value of the Employment Periodbenefits contemplated hereunder, assuming for this purpose any portion of the benefits that all accrued benefits are fully vested and that cannot be provided under the applicable benefit accrual formulas are no less advantageous plans shall instead be paid in a lump sum in cash within 30 days after the Date of Termination;
(viii) the Company shall pay to the Executive than those in effect during a lump sum in cash within 30 days after the 90-day period immediately preceding the Applicable Date, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect Date of Termination an amount equal to the Retirement Plan during cost of premiums for continued participation in 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 medical plan of the Company and its affiliated companies as with respect to the maximum level of coverage in effect for the Executive and applicable generally his or her spouse and dependents on the Date of Termination for 12 months after the Date of Termination, less the cost of premiums that the Executive would have had to other executives pay had he or she remained employed to continue such participation for such 12-month period;
(ix) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and their families during provider of which shall be selected by the 90-day period immediately preceding Executive in the Applicable DateExecutive’s sole discretion, but the cost thereof shall not exceed $40,000; provided, howeverfurther, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare such outplacement 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 not later than the last day of such periodthe second calendar year that begins after the Date of Termination; and
(iiix) except as otherwise set forth in the last sentence of Section 7, 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 that 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")”) in accordance with the terms of the underlying plans or agreements.
Appears in 3 contracts
Samples: Change of Control Employment Agreement (Aspen Insurance Holdings LTD), Change of Control Employment Agreement (Aspen Insurance Holdings LTD), Change of Control Employment Agreement (Aspen Insurance Holdings LTD)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during a Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the a Window Period:
(i) the Company shall pay or provide to or in respect of the Executive the aggregate of the following amounts and benefits:
A. 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 Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the highest annual bonus paid or accrued for the benefit of Executive during the three year period preceding the Date of Termination and (2y) a fraction, the numerator of which is the number of days since the date of the last bonus payment through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred or earned by the Executive (together with any accrued interest or earnings thereon) ), any unreimbursed expenses and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (23) shall be hereinafter referred to as the "Accrued ObligationsObligation"); and
B. in a lump sum in cash within 30 days after the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to Date of Termination the product of (1) three and (2) multiplying the factor of 3.75 times the sum of (x) the Executive's highest Annual Base Salary and (y) any the highest annual bonus described in Section 4(b)(ii) paid or which has been 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 within the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. past three years (including such salary and bonus paid by 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 previous employer which is a direct subsidiary of the Company and its affiliated companies providing benefits for as of 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) date of this Agreement 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, 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 Executiveone year'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"); andservice.
(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)(iv2(b)(iii) 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 on the 90-day period immediately preceding Effective Date or, if more favorable to the Applicable DateExecutive, provided, however, that if as in effect generally at any time thereafter with respect to other executives of the Executive becomes reemployed with another employer Company and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical its affiliated companies and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility their families (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 policiespolicies and for purposes of determining Vesting Service (as defined in the Reading & Bates Pension Plan) under the Reading & Bates Pension Plan and xxx Reading & Bates Benefits Rxxxxxement Plan, the Executive shall be considered xxxsidered 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 3 contracts
Samples: Employment Agreement (R&b Falcon Corp), Employment Agreement (R&b Falcon Corp), Employment Agreement (R&b Falcon Corp)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Executive for Good Reason; OTHER THAN FOR CAUSEBy the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause Cause, Death or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company or the Bank (as applicable) shall pay to the Executive Executive, in a lump sum in cash within 30 days after on the 30th day following the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2ii) any compensation previously deferred the Executive’s business expenses that are reimbursable pursuant to Section 3(b)(5) but have not been reimbursed by the Executive Company or the Bank (together with any accrued interest or earnings thereonas applicable) and 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, in each case pay to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii), (iii) and (2) shall be hereinafter referred to as iv), the "“Accrued Obligations"); and
B. the ”) and (v) an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1x) three the higher of (I) the Average Annual Bonus and (2II) the Target Annual Bonus (such higher amount, the “Applicable 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 Base Salary or Annual Bonus described in clause (i) or 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 apply to the same portion of the amount described in such clause (i) or 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);
(B) the amount equal to the product of (i) one and one half and (ii) the sum of (x) the Executive's ’s Annual Base Salary and (y) any bonus described in Section 4(b)(iithe Applicable Annual Bonus; and
(C) paid or payable in respect an amount equal to the sum of the most recently completed fiscal year of Company or the Bank (as applicable) matching or other employer contributions under the Company; and, provided further, that such amount shall be reduced by ’s or the present value (determined as provided Bank’s qualified defined contribution plans and any excess or supplemental defined contribution plans 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 which the Executive upon termination of employment participates that the Company or the Bank (as applicable) would have made on behalf 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 eighteen months after the Applicable Date) 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 Termination if the Executive's ’s employment continued at for eighteen months after the compensation level provided for in Sections 4(b)(i) Date of Termination (and 4(b)(ii) of this Agreement for the remainder of the Employment Periodwithout regard to any vesting requirement), assuming for this purpose that all accrued benefits are fully vested (i) the Executive’s compensation during the eighteen-month period is that required by Sections 3(b)(1) and that benefit accrual formulas are no less advantageous 3(b)(2) and (ii) to the Executive than extent that the employer contributions are determined based on the contributions or deferrals of the Executive, that the Executive’s contribution or deferral elections, as appropriate, are 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 prior to the Retirement Plan during the 90-day period immediately preceding the Applicable Date) 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")Termination; and
(ii2) for eighteen months following the remainder Date of the Employment Period, Termination or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may provide(the applicable period hereinafter referred to as the “Benefit Continuation Period”), the Company or the Affiliated Companies shall continue provide health care and life insurance benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies providing health care and life insurance benefits and at the benefit level described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's ’s employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families families; provided, however, that, the health care benefits provided during the 90-day period immediately preceding Benefit Continuation Period shall be provided in such a manner that such benefits (and the Applicable Datecosts and premiums thereof) are excluded from the Executive’s income for federal income tax purposes and, if the Company reasonably determines that providing continued coverage under one or more of its health care benefit plans contemplated herein could be taxable to the Executive, the Company shall provide such benefits at the level required hereby through the purchase of individual insurance coverage; provided, further, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare health care and life insurance benefits under another employer provided plan, the medical health care and other welfare life insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility eligibility;
(such continuation 3) the Company or the Bank (as applicable) shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive’s sole discretion, provided that the cost of such outplacement shall not exceed $50,000; and provided, further, that, such outplacement 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 not later than the last day of such periodthe second calendar year that begins after the Date of Termination; and
(iii4) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company or the Bank (as applicable) shall timely pay or provide to the Executive and/or any Other Benefits (as defined in Section 6) in accordance with the Executive's family any other amounts terms of the underlying plans or benefits required to be paid or provided or which agreements. Notwithstanding the foregoing provisions of Sections 5(a)(1) and 5(a)(2), in the event that the Executive and/or is a “specified employee” within the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement meaning of Section 409A of the Code (as determined in accordance with the methodology established by the Company and its affiliated companies as in effect on the Date of Termination) (a “Specified Employee”), amounts that constitute “nonqualified deferred compensation” within the meaning of Section 409A of the Code that would otherwise be payable and applicable generally to other executives benefits that would otherwise be provided under Section 5(a)(1) and their families 5(a)(2) during the 90six-day month period immediately preceding following the Applicable Date of Termination (such other amounts and benefits than the Accrued Obligations) shall instead be hereinafter referred to paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”) determined as of the "Other Benefits"Date of Termination, or provided on the first business day after the date that is six months following the Date of Termination (the “Delayed Payment Date”).
Appears in 3 contracts
Samples: Change of Control Employment Agreement (Cathay General Bancorp), Change of Control Employment Agreement (Cathay General Bancorp), Change of Control Employment Agreement (Cathay General Bancorp)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary amount of any Compensation for services rendered previously earned through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"" and are hereby agreed to constitute reasonable compensation for services rendered); and
B. the amount two hundred percent (such amount shall be hereinafter referred to as the "Severance Amount"200%) equal to the product of (1) three and (2) the sum of (x) the Executive's Annual Base Salary as of the Date of Termination and (y) any the Executive's Bonus Amount, determined in accordance with this provision (the "Severance Amount"). The Executive's "Bonus Amount" shall mean the average of the annual bonus described in Section 4(b)(ii) paid or payable in respect of for 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 two calendar years ended prior 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 Effective Date (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Applicable Date) such lesser number 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 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, 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)years, if any, under in which the Retirement Plan Executive was eligible to receive an annual bonus) and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to maximum potential annual bonus 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, earn during 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 calendar year in 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 Effective Date (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")occurs.
Appears in 3 contracts
Samples: Employment Agreement (Compass Bancshares Inc), Employment Agreement (Compass Bancshares Inc), Employment Agreement (Compass Bancshares Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, ------------------------------------------------------ during the a Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's his Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the higher of (I) the Targeted Annual Bonus and (2II) the Annual Bonus paid or payable, including any portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve full months or during which he was employed for less than twelve full months), for any completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive him (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) ), (2), and (23) shall be being 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 2.99 and (2) the sum of (x) the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(iithe Highest Annual Bonus.
(ii) paid or payable in respect of the most recently completed fiscal year of Executive shall immediately become fully 100% vested under the Company; and's qualified defined benefit retirement plan and benefits restoration plan (together, 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 excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") in which the Executive would receive participates, as if the Executive's his employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and his compensation in each of the three years is 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, required by Section 4(b)(i) 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 payableii), if any, under the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and;
(iiiii) for three years after the remainder Date of the Employment PeriodTermination, or such longer period as any plan, may be provided by the terms of the appropriate program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's his family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies Welfare Benefit Programs described in Section 4(b)(iv) of this Agreement if the Executive's his employment had not been terminated or, if more favorable to him, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives affiliates and their families during the 90-day period immediately preceding the Applicable Datefamilies, 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 provided for herein shall be secondary to those provided under such other plan during such applicable period of eligibility eligibility; and provided further that if the application of this sentence would result in material adverse tax consequences to the Company, the Company may, in lieu thereof, make cash payments to the Executive sufficient to allow him to obtain equivalent coverage for himself and his family (such continuation including to the extent necessary the election of such benefits for COBRA coverage and the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"maintenance of duplicate coverage during any pre-existing condition exclusion), and any additional cash payments necessary so that Executive will receive the full pre-tax benefit of the cash payments in lieu of coverage. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period; and;
(iiiiv) for a period ending on the earlier of one year from the Date of Termination or Executive's obtaining other full-time permanent employment, the Company shall, at its sole expense as incurred, provide the Executive with outplacement services that are reasonable in scope and cost in relation to his position;
(v) 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 he is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice Program 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 affiliates (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(vi) notwithstanding any provision of any stock option agreement to the contrary, stock options theretofore granted to Executive shall become fully exercisable and may be exercised during a period equal to the lesser of (A) three years from the Date of Termination, or (B) ten years from the date of grant of the options.
Appears in 2 contracts
Samples: Employment Agreement (Us Unwired Inc), Employment Agreement (Us Unwired Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSETermination Other Than for Cause, DEATH OR DISABILITYDeath or Disability if Employee ----------------------------------------------------------------- Agrees to Cancellation of Change of Control Agreement. If, during the ----------------------------------------------------- Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability death or Disability, and, subject to (i) the execution by the Executive of 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, a copy of which is attached as Exhibit B, the Executive shall terminate employment either for Good Reason or without any reason during be entitled to all of the Window Periodfollowing:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 15 calendar days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the higher of (I) the Minimum Bonus and (2II) 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 most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) ), (2), and (23) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three and (2) the sum of highest amount actually paid to the Executive in cash compensation (x) the Executive's that is, Annual Base Salary and (yplus bonus(es) actually paid) in any bonus described in Section 4(b)(ii) paid or payable in respect one 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 Companyprevious three calendar years; and
C. a separate lump sum supplemental retirement benefit an amount equal to the difference between excess of (1a) the actuarial equivalent of the benefit (utilizing for this purpose the actuarial assumptions utilized with respect no less favorable to the Employees Retirement Plan for Pogo Producing Company (or any successor Executive than those in effect under the Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during and immediately prior to the 90-day period immediately preceding the Applicable Date) of the benefit payable Effective Date under the Retirement Plan Plan, and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (together, the "SERP") which the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment Period, Termination assuming for this purpose that all accrued benefits are fully vested vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 3(b)(i) 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 DateSection 3(b)(ii), and over (2b) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(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 remainder of the Employment Period, or such longer period Continuation Period (as any plan, program, practice or policy may providedefined below), the Company shall continue to pay the premium for benefits to the Executive and/or the Executive's family at least dependents equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(iv) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer- provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits eligibility, and provided further that the Executive and the Executive's dependents otherwise are and remain eligible for coverage under the applicable period herein set forth federal law COBRA. The Continuation Period shall be hereinafter referred to as "Welfare Benefit Continuation")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 end Date of the Employment Period 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
(iiiv) 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, 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 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
(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 entered 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. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Executive for Good Reason; OTHER THAN FOR CAUSEor by the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the Average Annual Bonus and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid and in full satisfaction of the rights of the Executive thereto (the sum of the amounts described in clauses (1) ), (2), and (23) 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 3 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 CompanyAverage Annual Bonus; and
C. a separate lump sum supplemental retirement benefit an amount equal to the difference between (1a) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to aggregate benefits under the Employees Retirement Plan for Pogo Producing Company (or any successor plan thereto) Company's qualified pension and profit-sharing plans (the "Retirement PlanPlans") during the 90-day period immediately preceding the Applicable Date) of the benefit payable under the Retirement Plan and any excess or supplemental and/or excess retirement plan of the Company pension and its affiliated companies providing benefits for profit-sharing plans in which the Executive participates (collectively, the "SERPNonqualified Plans") which the Executive would have been entitled to receive if the Executive's employment had 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 Separation Period, assuming for this purpose (to the extent relevant) that all accrued benefits are fully vested 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 benefit accrual formulas are no less advantageous employer contributions to the Executive than those Executive's accounts in effect the Retirement Plans and the Nonqualified Plans during the 90-day period Separation Period would have been equal to the average of such contributions for the three years immediately preceding the Applicable Date of Termination or, if higher, the three years immediately preceding the Effective Date, and (2b) 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 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 SERP (Nonqualified Plans on the amount Date of such benefit shall be hereinafter referred to as Termination and the "Supplemental Retirement Amount"date of the Change of Control); and;
(ii) for the remainder of the Employment Separation 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 or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during (in each case with such contributions by the 90-day period immediately preceding Executive as would have been required had the Applicable Date, 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 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 eligibility, and for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until during the end of the Employment Separation Period and to have retired on the last day of such period. The Separation Period shall not be subtracted from the period of months for which the Executive is eligible for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985.;
(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
(iiiiv) 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 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"). 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 2 contracts
Samples: Change of Control Employment Agreement (Clorox Co /De/), Change of Control Employment Agreement
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODTermination by the Company Without Cause or by the 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; OTHER THAN FOR CAUSEand For purposes of this Agreement, DEATH OR DISABILITYthe 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. IfIf 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 Disability or Employee the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary (then in effect) through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of no further obligations under 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")Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Smart Online Inc), Employment Agreement (Smart Online Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Executive for Good Reason; OTHER THAN FOR CAUSEBy the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause Cause, Death or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 60 days after the Date of Termination (subject to the Executive’s execution and nonrevocation, within fifty-two (52) days after the Date of Termination, of the general release attached hereto as Appendix A), the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's ’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 and as of the Date of Termination; (2iv) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case paid time off to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii), (iii) and (2) shall be hereinafter referred to as iv), the "“Accrued Obligations"); and
B. the ”) and (v) an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1x) the Highest Annual Bonus and (y) 0.5 (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 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 (i) three and (2ii) the sum of (x) the Executive's ’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; andHighest Annual Bonus.
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 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, and (2) the actuarial equivalent for eighteen (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Applicable Date18) of months after the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP (the amount ’s Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may provide(the “Benefit Continuation Period”), the Company shall continue provide health care, life insurance benefits and long-term disability benefits to the Executive and/or the Executive's ’s family at least equal to, and at the same after-tax cost to the Executive and/or the Executive’s family, as those which that would have been provided to them in accordance with the plans, programs, practices and policies providing health care, life insurance benefits and long-term disability benefits and at the benefit level described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's ’s employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families during the 90-day period immediately preceding the Applicable Date, families; provided, however, that if the Executive becomes reemployed re-employed with another employer and is eligible to receive medical or other welfare benefits health care under another employer employer-provided plan, the medical and other welfare benefits described herein health care provided hereunder shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such eligibility. The health care benefits for provided during the applicable period herein set forth Benefit Continuation Period hereunder shall be hereinafter referred provided concurrently with any health care benefits that may be provided during such period pursuant to as "Welfare Benefit Continuation")Section 4980B of the Code. For purposes of determining eligibility and the Company’s contribution (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to such the retiree welfare benefit plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end third anniversary of the Employment Period Date of Termination, and the Company shall take such actions as are necessary to have retired on cause the last day Executive to be eligible to commence in the applicable retiree welfare benefit plans as of such periodthe applicable benefit commencement date;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services, for a limited period of time not longer than twelve (12) months following the Executive’s Date of Termination, the scope and provider of which shall be selected by the Executive in the Executive’s sole discretion; and
(iii4) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or any Other Benefits (as defined in Section 6) in accordance with 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 terms 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")underlying plans or agreements.
Appears in 2 contracts
Samples: Change of Control Employment Agreement (Assurant Inc), Change of Control Employment Agreement (Assurant Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during the Window Period; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath -------------------------------------------------------------------- or Disability. If, during the Employment Period, the Company shall terminate ------------- the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) the Special Bonus, if due to the Executive pursuant to Section 4(b) (iii), to the extent not theretofore paid and (24) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) 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) 2.9 times 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 Amount" (the "Code")) of any other amount of severance relating to salary or bonus continuation to be received by average annual taxable compensation for the Executive upon termination of employment of five years preceding the Executive under any severance plan, severance policy or severance arrangement of the CompanyChange in Control Date; and
C. a separate lump lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Employees [Company's Retirement Plan for Pogo Producing Company Plan] (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Applicable 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 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 proceeding the Applicable Effective 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 Effective 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")SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv4(b)(v) 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 peer executives and their families during the 90-day period immediately preceding the Applicable DateEffective 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 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 peer executives and their families during the 90-day period immediately preceding the Applicable Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) each Company stock option held by the Executive that is outstanding immediately prior to such termination shall, pursuant to its terms and without any further action on the part of the Board of Directors or the Compensation Committee of the Company, become 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. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSETermination Other Than for Cause, DEATH OR DISABILITYDeath or Disability if Employee ----------------------------------------------------------------- Agrees to Cancellation of Change of Control Agreement. If, during the ----------------------------------------------------- Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability death or Disability, and, subject to (i) the execution by the Executive of 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, a copy of which is attached as Exhibit B, the Executive shall terminate employment either for Good Reason or without any reason during be entitled to all of the Window Periodfollowing:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 15 calendar days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the higher of (I) the Minimum Bonus and (2II) 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 most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) ), (2), and (23) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three and (2) the sum of highest amount actually paid to the Executive in cash compensation (x) the Executive's that is, Annual Base Salary and (yplus bonus(es) actually paid) in any bonus described in Section 4(b)(ii) paid or payable in respect one 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 Companyprevious three calendar years; and
C. a separate lump sum supplemental retirement benefit an amount equal to the difference between excess of (1a) the actuarial equivalent of the benefit (utilizing for this purpose the actuarial assumptions utilized with respect no less favorable to the Employees Retirement Plan for Pogo Producing Company (or any successor Executive than those in effect under the Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during and immediately prior to the 90-day period immediately preceding the Applicable Date) of the benefit payable Effective Date under the Retirement Plan Plan, and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (together, the "SERP") which the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment Period, Termination assuming for this purpose that all accrued benefits are fully vested vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 3(b)(i) 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 DateSection 3(b)(ii), and over (2b) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(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 remainder of the Employment Period, or such longer period Continuation Period (as any plan, program, practice or policy may providedefined below), the Company shall continue to pay the premium for benefits to the Executive and/or the Executive's family at least dependents equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(iv) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer employer- provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits eligibility, and provided further that the Executive and the Executive's dependents otherwise are and remain eligible for coverage under the applicable period herein set forth federal law COBRA. The Continuation Period shall be hereinafter referred to as "Welfare Benefit Continuation")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 end Date of the Employment Period 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
(iiiv) 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, 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 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 2 contracts
Samples: Employment Agreement (Crown Paper Co), Employment Agreement (Crown Vantage Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, Termination by the Company shall terminate the Executive's employment other than for without Cause or Disability by the 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 Executive shall terminate Employee terminates his employment either for Good Reason (as defined below) at any time during which the Employee does not directly, or without any reason during indirectly through one or more intermediaries, control the Window PeriodCompany:
(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 receive for services rendered prior 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 Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (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 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, 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 date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andtermination;
(ii) the Company shall pay the Employee for any accrued but unused vacation;
(iii) for a period of twelve (12) months following the remainder of date on which the Employment Period, or such longer period as any plan, program, practice or policy may provideEmployee'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 benefits specified in this Agreement, with no adverse tax consequences to the Executive and/or Employee, as if he had remained employed by the Executive's family at least equal Company pursuant 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 entire such other plan during such applicable period of eligibility twelve (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 12) month period; and
(iiiiv) 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 theretofore paid or providedalready 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 shall timely pay under any of the following circumstances:
(i) any demotion or provide 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 Executive and/or Company's board of directors;
(iv) relocation of the ExecutiveEmployee's family office to a location more than thirty (30) miles outside of Research Triangle Park, North Carolina; or
(v) 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 material breach of this Agreement and under any plan, program, policy or practice or contract or agreement of by 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")Company.
Appears in 2 contracts
Samples: Employment Agreement (Smart Online Inc), Employment Agreement (Smart Online Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEBy the Company for Any Reason Other Than for Cause, DEATH OR DISABILITYDeath or Disability, or By the Executive for Good Reason. IfSubject to Section 5, if, during the Employment Period, (x) the Company shall terminate the Executive's ’s employment for any reason other than (i) for Cause Cause, or (ii) due to the Executive’s death or Disability or (y) the Executive shall terminate employment either for Good Reason or without any reason during Reason, the Window PeriodCompany shall pay and provide to the Executive the following amounts and benefits:
(i) the Company shall pay to the Executive in a lump sum in cash payment within 30 days after the Date of Termination equal to the aggregate of the following amounts:
A. the sum of : (1) the Executive's ’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 theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and through (23) 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 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, 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"”); and
(ii) subject to the Executive’s continued compliance with the provisions of Section 8 of this Agreement and the 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 (the “Release”), which Release must be executed and delivered to the Company and the period in which it may be revoked must expire not later than thirty 30 days after the Date of Termination (the “Release Deadline”):
(A) an amount equal to two times the sum of (i) the Executive’s Annual Base Salary and (ii) the Executive’s Target Bonus as in effect for the remainder fiscal year of the Employment PeriodCompany in which the Date of Termination occurs, which amount shall be paid in equal installments made in accordance with the Company’s normal payroll practices, beginning on the first regularly scheduled payday following the Date of Termination and ending on the first payday following the one year anniversary of the Date of Termination; provided that, if any installment payment(s) would occur prior to the Release Deadline, such installment payment(s) shall be delayed until the first payday following the Release Deadline and payments made on such payday shall include all amounts that would otherwise have been paid to the Executive prior to the Release Deadline in addition to any installment otherwise payable on such date;
(B) to the extent permitted by the Company’s group health insurance carrier and as would not cause the Company to incur tax or such longer period as any plan, program, practice or policy may provideother penalties, the Company shall continue benefits pay to Executive an after-tax amount equal to the Executive and/or monthly amount of the Executive's family at least equal COBRA (as defined below) continuation coverage premium under the Company’s group medical plans as in effect from time to those which would have been provided to them time, for eighteen (18) months following the Date of Termination, in accordance with the plansCompany’s normal payroll practices; provided that, programsif any installment payment(s) would occur prior to the Release Deadline, practices such installment payment(s) shall be delayed until the first payday following the Release Deadline and policies described payments made on such payday shall include all amounts that would otherwise have been paid to the Executive prior to the Release Deadline in addition to any installment otherwise payable on such date. The receipt of such health care benefits shall be conditioned upon the Executive making a timely election to receive coverage provided to former employees under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and 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 4980B of the Company Code and its affiliated companies continuing such coverage for so long as it may be available, and thereafter continuing to pay an amount equal to the monthly COBRA premium as in effect at the Company from time to time in respect of the applicable level of coverage. If Executive allows such coverage to lapse by not paying the applicable amount, such coverage may not thereafter be reinstated (the benefits provided pursuant to this Section 4(a)(ii)(B), the “Post-Employment Health Care Benefits”);
(C) upon the first business day following the Release Deadline, full accelerated vesting of any outstanding (i) normal annual time-based equity awards, including RSUs, granted in 2017, 2018 or 2019, and applicable generally (ii) unless otherwise specified in an individual award agreement, any other time-based equity awards granted to other executives and their families during the 90-day period immediately preceding the Applicable Date, provided, however, that if the Executive becomes reemployed after the Effective Date then outstanding and not otherwise vested, and waiver of any service-based vesting conditions on any other outstanding equity-based or long-term performance awards (the “Time-Based Award Vesting Benefits”);
(D) with another employer and is eligible respect to receive medical any outstanding PSUs or other welfare benefits under another employer provided planperformance-based awards, the medical including any outstanding PSUs granted in 2017, 2018 and other welfare benefits described herein 2019, such awards shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for i) vested based on actual performance over the applicable performance period herein set forth shall be hereinafter referred without regard to as "Welfare Benefit Continuation"). For purposes any applicable service vesting condition, and (ii)(x) if such award is a short term deferral (within the meaning of determining eligibility Section 409A of the Executive for retiree benefits pursuant to such plansCode), practices, programs then settled no earlier than the first business day following the Release Deadline and policies, the Executive shall be considered to have remained employed until no later than the end of the Employment Period applicable short term deferral period or (y) if such award constitutes deferred compensation (within the meaning of Section 409A of the Code), then settled at the time and in the form specified in the applicable award agreement (the “Performance Award Vesting Benefits”), unless otherwise specified in an individual award agreement with respect to have retired (I) an annual performance-based award granted after 2019 or (II) a special one-time performance-based award;
(E) a pro rata portion of Executive’s Annual Bonus for the year in which the Date of Termination occurs, based on (i) the last day portion of such periodyear the Executive was employed hereunder and (ii) actual performance for such period (which shall be paid as soon as possible following the end of the performance period but no earlier than the first business day following the Release Deadline and no later than two and a half months following the end of the Company’s fiscal year in which the Date of Termination occurs) (the “Pro-Rata Bonus”); 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 that 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 through the 90-day period immediately preceding the Applicable Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”), such amounts or benefits to be paid or provided at the time and in the form provided in the applicable plan or policy. Notwithstanding the foregoing provisions of this Section 4(a), in the event that the Executive is a “specified employee” (within the meaning of Section 409A of the Code and with such classification to be determined in accordance with the methodology established by the 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) during the six-month period immediately following the Date of Termination shall instead be paid, with interest on any delayed payments at the applicable federal rate provided for in Section 7872(f)(2)(A) of the Code (“Interest”), on the first business day after the earlier of (i) the date of the Executive’s death and (ii) the date that is six months following the Date of Termination (the “409A Payment Date”). For the avoidance of doubt, the parties hereto acknowledge that the severance payments and benefits described in this Agreement are intended, to the fullest extent possible, to be exempt from the operation of Section 409A of the Code and not “deferred compensation” within the meaning of Section 409A. Further, for avoidance of doubt, if the Executive does not deliver to the Company an executed Release by the Release Deadline then the Company shall have no obligation to make any payment or provide any benefit under Section 4(a)(ii) of this Agreement.
Appears in 2 contracts
Samples: Employment Agreement (Washington Prime Group, L.P.), Employment Agreement (Washington Prime Group, L.P.)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during the Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the The sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) the Special Bonus, if due to the Executive pursuant to Section 3(b)(iii), to the extent not theretofore paid and (24) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the The amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three two and (2) the sum of (x) the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(ii) the Highest Annual Bonus; provided, however, that if the Special Bonus has not been paid or payable in respect to the Executive, such amount shall be increased by the amount of the most recently completed fiscal year of the CompanySpecial Bonus; 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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(v) 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 peer executives and their families during the 90-day period immediately preceding the Applicable DateEffective 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 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 peer executives of the Company and its affiliated companies 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 2 contracts
Samples: Executive Employment Agreement (Navidec Inc), Executive Employment Agreement (Navidec Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood ------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment ------------------------------------------------- Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the higher of (I) the Recent Annual Bonus and (2II) 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 (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three and (2ii) 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 CompanyHighest Annual Bonus; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect during each of the 90-day period immediately preceding the Applicable Datethree years is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii2) for three years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its the affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion;
(4) any unvested stock options and restricted stock granted on or prior to the date hereof shall become immediately vested and exercisable, and all options granted on or prior to the date hereof that are vested, but unexercised, as of the Date of Termination shall remain exercisable for the period during which they would have been exercisable absent the termination of the Executive's employment;
(5) for three years after the Executive's Date of Termination, the Company shall maintain the Split Dollar Agreement and continue to pay all premiums due under the Split Dollar Agreement and the Insurance Policy; provided, however, that upon or at any time prior to the expiration of such three-year period, the executive or the then owner of the Insurance Policy may terminate the Split Dollar Agreement and the Collateral Assignment Agreement by paying to the Company an amount equal to the total amount of the premiums advance by the Company (or its predecessor and their affiliates) in accordance with the Split Dollar Agreement as of the date of termination of the Split Dollar Agreement, minus any withdrawals of cash value or loan proceeds received by the Company or its affiliates from the cash value of the Insurance Policy and which were made to the Company or its affiliates as of the date of the termination of the Split Dollar Agreement (such payment may, in the discretion of the Executive or other owner of the policy, be made in cash or may be accomplished by means of a loan or withdrawal of cash values of the Insurance Policy which is authorized by the Executive or such other owner of the Insurance Policy) (the "Insurance Policy Buy-Out Option"); and
(iii6) 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 that 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 the 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 benefits, the "Other Benefits").
Appears in 2 contracts
Samples: Employment Agreement (National Commerce Bancorporation), Employment Agreement (National Commerce Bancorporation)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODTermination by Executive for Good Reason; OTHER THAN FOR CAUSE, DEATH OR DISABILITYTermination by the Company Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason, then in consideration of Executive's services rendered prior to such termination:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2) the product of (x) Executive's Target Bonus (as defined in Section 5(b) for the year in which the Date of Termination occurs and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, (3) any accrued vacation pay to the extent not theretofore paid, and (4) unless Executive has elected a different payout date in a prior deferral election, any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) 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 sum 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 effect as of the most recently completed fiscal year Date 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 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 DateTermination, 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 Target Bonus for the Retirement Plan and year in which the SERP Date of Termination occurs (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement AmountSeverance Payment"); and
(ii) for 12 months after the remainder Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue medical and health insurance benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv5(d) of this Agreement if the Executive's employment had not been terminated in accordance with (and Executive shall continue to be responsible for any cost thereof normally allocated to 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, employee); provided, however, that (A) post-termination insurance coverage provided pursuant to this provision shall offset any period of continuation coverage provided under COBRA applicable to such benefits, and (B) if the Executive becomes reemployed re-employed with another employer and is eligible to receive medical or other welfare and health insurance benefits under another employer provided plan, the medical and other welfare health insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (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 periodeligibility; and
(iii) as shall be set forth in the instruments evidencing such awards, all stock options and other equity-based awards in the nature of rights that may be vested and/or exercised ("Equity Awards") that are held by Executive as of the Date of Termination will continue to vest and/or become exercisable over the 12-month period immediately following the Date of Termination; provided, however that if the Date of Termination occurs within two years after the occurrence of a Change of Control, then all of Executive's Equity Awards shall vest immediately as of the Date of Termination and shall remain exercisable over the 12-month period following the Date of Termination; and
(iv) 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 Company, including without limitation COBRA rights to other executives and their families during the 90-day period immediately preceding the Applicable Date extent not fully offset (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during ------------------------------------------------------ the Employment PeriodTerm, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 five (5) days after the Termination Date of Termination the aggregate of the following amounts:
A. the The sum of of:
(1) the The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid and paid; and
(2) The product of (x) the higher of (I) the Recent Average Bonus and (II) the Annual Bonus paid or payable, including any compensation previously deferred by amount deferred, (and annualized for any fiscal year consisting of less than twelve (12) full months or for which the Executive has been employed for less than twelve (together with 12) full months) for the most recently completed fiscal year during the Employment Term, if any accrued interest or earnings thereon(such higher amount being referred to as the "Highest Annual Bonus.) and any accrued vacation pay(y) a fraction, the numerator of which is the number of days completed in each case to the extent not theretofore paid (current fiscal year through the Termination Date, and the denominator of which is 365. The sum of the amounts described in clauses Clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. the The amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three two and (2) the sum of (x) the Executive's Annual Base Salary (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) 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 CompanyExecutive's Highest Annual Bonus; and
C. a A separate lump lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the most favorable to the Executive actuarial assumptions utilized and Company contribution history with respect to the Employees Retirement Plan for Pogo Producing Company applicable retirement plan, incentive plans, savings plans and other plans described in Section 4(c) (or any successor plan thereto) (the "Retirement PlanPlans") during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date) of the benefit payable under the Retirement Plan Plans 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 for an additional two (2) years after the Termination Date with annual compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for equal to the remainder sum of the Employment PeriodAnnual Base Salary and Highest Annual Bonus, assuming for this purpose that all accrued benefits and contributions are fully vested and that benefit accrual formulas and Company contributions are no less advantageous to the Executive than those in effect during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan Plans during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan Plans and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andSERP.
(ii) for For twenty-four (24) months after the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provideTermination Date, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 peer executives who are active employees and their families during the 90-day period immediately preceding the Applicable Date, as in effect from time to time thereafter; 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 eligibility, provided that the aggregate coverage of such benefits for the applicable period herein set forth shall be hereinafter referred combined benefit plans is no less favorable to as "Welfare Benefit Continuation")the Executive, in terms of amounts and deductibles and costs to him, than the coverage required hereunder. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policieshealth insurance, the Executive shall be considered to have remained employed until the end of the Employment Period such twenty-four (24) month period and to have retired on the last day of such period. If the Executive would qualify at the end of such twenty-four (24) month period for retiree health insurance under the Company's plan guidelines as in existence on the Effective Date, the Company shall provide to the Executive and his or her spouse, for life, retiree health insurance, subsidized to at least the same percentage extent as under the Company's plan as in existence on the Effective Date. Such retiree health insurance shall provide medical benefits to the Executive and/or the Executive's spouse in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives who are active employees and their spouses as in effect from time to time thereafter; andprovided, however, that if the Executive and/or the Executive's -------- ------- spouse qualifies for coverage by Medicare or any successor program, the Company may require that the Executive and/or the Executive's spouse fully participate in Medicare and pay the premiums therefor personally.
(iii) The Executive shall have the right to purchase the car provided to him by the Company or its affiliates, if any, during the twelve (12) month period immediately preceding the Effective Date (or a comparable car acceptable to the Executive if such car is no longer owned by the Company or its affiliates), at the book value thereof on the Termination Date, exercisable within thirty (30) days after the Termination Date; and if the car is not purchased, Executive shall return the car to the Company.
(iv) The Executive shall have the option of purchasing the interest of the Company or any of its affiliates in any split-dollar life insurance on the life of Executive for the Company's investment in the contract, exercisable at any time within thirty (30) days after the Termination Date; and the Company agrees during the Employment Term not to terminate, sell, transfer or otherwise dispose of any such insurance without first allowing Executive the opportunity to exercise such option. For the twenty-four (24) month period after the Termination Date, the Company shall continue to provide group term life insurance (or comparable term coverage) in the same face amount and on substantially the same terms as in effect for the Executive just prior to the Effective Time. At the end of the twenty-four (24) month period, the Executive shall have any conversion rights as regards such coverage as are provided by law.
(v) 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"). Notwithstanding anything herein contained to the contrary, the payments and benefits provided in this Section 6(a) (other than the Accrued Obligations) shall not be paid or provided to the Executive unless and until he executes a Complete and Permanent Release (the "Release") in the form attached hereto, and the applicable period for rescission of the Release has expired. The parties agree that the Release may be expanded to include any company acquiring the Company and its affiliates as "Released Parties," as defined in the Release.
Appears in 1 contract
Obligations of the Company Upon Termination. (i) Upon the termination of this Agreement: (a) GOOD REASON OR DURING THE WINDOW PERIODby the Employee pursuant to paragraph 5(b)(ii); OTHER THAN FOR CAUSEor (b) by the Company pursuant to paragraph 5(c)(ii), DEATH OR DISABILITY. If, during the Employment Period(iii) or (v), the Company shall terminate the Executive's employment have no further obligations hereunder other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during payment of all accrued but unused vacation time and compensation and other benefits payable to the Window Period:Employee through the date of such termination.
(iii) Upon termination of this Agreement: (a) by the Employee pursuant to paragraph 5(b)(i), or (b) by the Company pursuant to paragraph 5(c)(i) or (iv) and provided the Employee executes a Release and Settlement Agreement in the form acceptable to the Company: (a) 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 (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the Employee an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of six (16) three and months base salary (2less all applicable deductions) 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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 then-current payroll policies of the Company or as otherwise agreed to by the parties; (b) the Employee shall to be entitled to receive all Company benefits including accrued but unused vacation to which the Employee was entitled as of the date of termination, subject to the terms of all applicable benefit plans and its affiliated companies to the extent such benefits can be provided to a non-employee (or to the extent such benefits cannot be provided to non-employees, then the cash equivalent thereof), at the same average level and on the same terms and conditions which applied immediately prior to the date of the Employee’s termination, for the shorter of: (i) six (6) months following the date of such termination or (ii) until the Employee obtains reasonably comparable coverage from another employer; and (c) all options previously granted to the Employee that would have vested over the next six (6) months of the Employee’s employment will immediately vest and become exercisable as in effect and applicable generally to other executives and their families of the date of termination. At any time during the 90-day severance 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 planas set forth above, the medical and other welfare benefits described herein shall be secondary Company may elect to those provided under such other plan during such applicable period of eligibility (such continuation pay a lump sum amount to the Employee which represents the reasonable value of such benefits for the applicable period herein set forth shall be hereinafter referred reduced to as "Welfare Benefit Continuation"). For purposes their present value in lieu of determining eligibility continuing payment 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")benefits.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability or Voluntary Termination prior to July 1, 2002. If, during the Employment Period, (i) the Company and its affiliated companies shall terminate the Executive's employment other than for Cause or Disability Disability, or (ii) the Executive shall voluntarily terminate employment either for Good Reason or without any reason during reason, other than Disability, after June 30, 2002, and after giving 30 days' prior written notice of such termination to the Window PeriodCompany:
(i) the The Company shall pay to the Executive in a lump sum in cash Executive, within 30 days after the Date of Termination Termination, a lump-sum cash payment of $1,794,212, together with interest on this amount accrued from January 1, 2001 through the aggregate date of payment at 120% of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred short-term Applicable Federal Rate for January, 2001, compounded semi-annually, as published by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum Internal Revenue Service for purposes 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)(41274(d) of the Internal Revenue Code of 1986, as amended (the "Code");
(ii) of any other amount of severance relating to salary or bonus continuation to be received by Should the Executive upon termination of employment move his residence in order to pursue other business opportunities within three years of the Date of Termination (or until his normal retirement date, whichever is sooner), the Company shall reimburse him for any expenses incurred in that relocation (including taxes payable on the reimbursement) which are not reimbursed by another employer; provided, however, that the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. a separate lump sum supplemental retirement benefit equal shall be entitled to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized such reimbursement with respect to only one such relocation, and the Employees Retirement Plan Executive shall be entitled to specify the relocation for Pogo Producing which reimbursement hereunder is to be made. Benefits under this provision will include the assistance, at no cost to the Executive, in selling his home and other assistance which was customarily provided to executives transferred within the 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 between the Company and its affiliated companies providing benefits for prior to the Executive Effective Date;
(the "SERP"iii) which the Executive would receive if For three years after the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date 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, 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"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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)(iv2(b)(iii) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(iv) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion; and
(iiiv) to To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other 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. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during a Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the a Window Period:
(i) the Company shall pay or provide to or in respect of the Executive the aggregate of the following amounts and benefits:
A. 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 Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the highest annual bonus paid or accrued for the benefit of Executive during the three year period preceding the Date of Termination and (2y) a fraction, the numerator of which is the number of days since the date of the last bonus payment through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred or earned by the Executive (together with any accrued interest or earnings thereon) ), any unreimbursed expenses and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (23) shall be hereinafter referred to as the "Accrued ObligationsObligation"); and
B. in a lump sum in cash within 30 days after the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to Date of Termination the product of (1) three and (2) multiplying the factor of 6 times the sum of (x) the Executive's highest Annual Base Salary and (y) any the highest annual bonus described in Section 4(b)(ii) paid or which has been 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 within the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. past three years (including such salary and bonus paid by 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 previous employer which is a direct subsidiary of the Company and its affiliated companies providing benefits for as of 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) date of this Agreement 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, 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 Executiveone year'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"); andservice.
(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)(iv2(b)(iii) 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 on the 90-day period immediately preceding Effective Date or, if more favorable to the Applicable DateExecutive, provided, however, that if as in effect generally at any time thereafter with respect to other executives of the Executive becomes reemployed with another employer Company and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical its affiliated companies and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility their families (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 policiespolicies and for purposes of determining Vesting Service (as defined in the Reading & Bates Pension Plan) under the Reading & Bates Pension Plan and xxx Reading & Bates Benefits Repxxxxxent Plan, the Executive shall be considered xxxxxdered 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. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during ------------------------------------------------------ the Employment PeriodTerm, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 five (5) days after the Termination Date of Termination the aggregate of the following amounts:
A. the The sum of of:
(1) the The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid and paid; and
(2) The product of (x) the higher of (I) the Recent Average Bonus and (II) the Annual Bonus paid or payable, including any compensation previously deferred by amount deferred, (and annualized for any fiscal year consisting of less than twelve (12) full months or for which the Executive has been employed for less than twelve (together with 12) full months) for the most recently completed fiscal year during the Employment Term, if any accrued interest or earnings thereon(such higher amount being referred to as the "Highest Annual Bonus.) and any accrued vacation pay(y) a fraction, the numerator of which is the number of days completed in each case to the extent not theretofore paid (current fiscal year through the Termination Date, and the denominator of which is 365. The sum of the amounts described in clauses Clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. the 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 (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) 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; andExecutive's Highest Annual Bonus;
C. a A separate lump lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Employees Retirement Plan for Pogo Producing Company most
(or any successor plan theretoi) (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 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, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during Growth component of the 90retirement program of the Company, the Executive would receive three times eight percent (8%) (or twenty-day period immediately preceding four percent (24%)) of the Applicable Datesum of the Executive's Annual Base Salary (determined in accordance with subsection C of Section 6(a)(i)) and the Executive's Highest Annual Bonus; and (ii) with respect to the Incentive Savings component of the retirement plan of the Company, the Executive would receive three times the annual Company match of fifty percent (50%) of the Executive's actual benefit (paid or payable), if any, under maximum allowable contribution to the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to assuming Executive's compensation is as the "Supplemental Retirement Amount")set forth above; and
D. The amount equal to the product of (i) three and (ii) the sum of (x) the imputed income reflected on Executive's W-2 attributable to the car provided to Executive by the Company or its affiliates for the last calendar year ending before the Effective Date and (y) the club dues for Executive paid by the Company or its affiliates attributable to such year.
(ii) for For thirty-six (36) months after the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provideTermination Date, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 peer executives who are active employees and their families during the 90-day period immediately preceding the Applicable Date, as in effect from time to time thereafter; 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 eligibility, provided that the aggregate coverage of such benefits for the applicable period herein set forth shall be hereinafter referred combined benefit plans is no less favorable to as "Welfare Benefit Continuation")the Executive, in terms of amounts and deductibles and costs to him, than the coverage required hereunder. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policieshealth insurance, the Executive shall be considered to have remained employed until the end of the Employment Period such thirty-six (36) month period and to have retired on the last day of such period. If the Executive would qualify at the end of such thirty-six (36) month period for retiree health insurance under the Company's plan guidelines as in existence on the Effective Date, the Company shall provide to the Executive and his or her spouse, for life, retiree health insurance, subsidized to at least the same percentage extent as under the Company's plan as in existence on the Effective Date. Such retiree health insurance shall provide medical benefits to the Executive and/or the Executive's spouse in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives who are active employees and their spouses as in effect from time to time thereafter; andprovided, however, that if the Executive -------- ------- and/or the Executive's spouse qualifies for coverage by Medicare or any successor program, the Company may require that the Executive and/or the Executive's spouse fully participate in Medicare and pay the premiums therefor personally.
(iii) The Executive shall have the right to purchase the car provided to him by the Company or its affiliates during the twelve (12) month period immediately preceding the Effective Date (or a comparable car acceptable to the Executive if such car is no longer owned by the Company or its affiliates), at the book value thereof on the Termination Date, exercisable within thirty (30) days after the Termination Date; and if the car is not purchased, Executive shall return the car to the Company.
(iv) The Executive shall have the right to use reasonable office and secretarial assistance for a period of twelve (12) months after the Termination Date.
(v) The Executive shall have the option of purchasing any life insurance owned by the Company or its affiliates on the life of Executive for the Company's investment in the contract, exercisable at any time within thirty (30) days after the Termination Date; and the Company agrees during the Employment Term not to terminate, sell, transfer or otherwise dispose of any such insurance without first allowing Executive the opportunity to exercise such option. For the thirty-six (36) month period after the Termination Date, the Company shall continue to provide group term life insurance (or comparable term coverage) in the same face amount and on substantially the same terms as in effect for the Executive just prior to the Effective Time. At the end of the thirty-six (36) month period, the Executive shall have any conversion rights as regards such coverage as are provided by law.
(vi) 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). Notwithstanding anything herein contained to the contrary, the payments and benefits provided in this Section 6(a) (other than the Accrued Obligations) shall not be paid or provided to the Executive unless and until he executes a Complete and Permanent Release (the ")Release") in the form attached hereto, and the applicable period for rescission of the Release has expired. The parties agree that the Release may be expanded to include any company acquiring the Company and its affiliates as "Released Parties" as defined in the Release.
Appears in 1 contract
Samples: Change of Control Agreement (Marshall & Ilsley Corp/Wi/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during ------------------------------------------------------ the Employment PeriodTerm, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 five (5) days after the Termination Date of Termination the aggregate of the following amounts:
A. the The sum of of:
(1) the The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid and paid; and
(2) The product of (x) the higher of (I) the Recent Average Bonus and (II) the Annual Bonus paid or payable, including any compensation previously deferred by amount deferred, (and annualized for any fiscal year consisting of less than twelve (12) full months or for which the Executive has been employed for less than twelve (together with 12) full months) for the most recently completed fiscal year during the Employment Term, if any accrued interest or earnings thereon(such higher amount being referred to as the "Highest Annual Bonus.) and any accrued vacation pay(y) a fraction, the numerator of which is the number of days completed in each case to the extent not theretofore paid (current fiscal year through the Termination Date, and the denominator of which is 365. The sum of the amounts described in clauses Clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. the 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 (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) 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 CompanyExecutive's Highest Annual Bonus; and
C. a A separate lump lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the most favorable to the Executive actuarial assumptions utilized and Company contribution history with respect to the Employees Retirement Plan for Pogo Producing Company applicable retirement plan, incentive plans, savings plans and other plans described in Section 4(c) (or any successor plan thereto) (the "Retirement PlanPlans") during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date) of the benefit payable under the Retirement Plan Plans 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 for an additional three (3) years after the Termination Date with annual compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for equal to the remainder sum of the Employment PeriodAnnual Base Salary and Highest Annual Bonus, assuming for this purpose that all accrued benefits and contributions are fully vested and that benefit accrual formulas and Company contributions are no less advantageous to the Executive than those in effect during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan Plans during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date) of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan Plans and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andSERP.
(ii) for For thirty-six (36) months after the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provideTermination Date, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 peer executives who are active employees and their families during the 90-day period immediately preceding the Applicable Date, as in effect from time to time thereafter; 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 eligibility, provided that the aggregate coverage of such benefits for the applicable period herein set forth shall be hereinafter referred combined benefit plans is no less favorable to as "Welfare Benefit Continuation")the Executive, in terms of amounts and deductibles and costs to him, than the coverage required hereunder. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policieshealth insurance, the Executive shall be considered to have remained employed until the end of the Employment Period such thirty-six (36) month period and to have retired on the last day of such period. If the Executive would qualify at the end of such thirty-six (36) month period for retiree health insurance under the Company's plan guidelines as in existence on the Effective Date, the Company shall provide to the Executive and his or her spouse, for life, retiree health insurance, subsidized to at least the same percentage extent as under the Company's plan as in existence on the Effective Date. Such retiree health insurance shall provide medical benefits to the Executive and/or the Executive's spouse in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives who are active employees and their spouses as in effect from time to time thereafter; andprovided, however, that if the Executive -------- ------- and/or the Executive's spouse qualifies for coverage by Medicare or any successor program, the Company may require that the Executive and/or the Executive's spouse fully participate in Medicare and pay the premiums therefor personally.
(iii) The Executive shall have the right to purchase the car provided to him by the Company or its affiliates, if any, during the twelve (12) month period immediately preceding the Effective Date (or a comparable car acceptable to the Executive if such car is no longer owned by the Company or its affiliates), at the book value thereof on the Termination Date, exercisable within thirty (30) days after the Termination Date; and if the car is not purchased, Executive shall return the car to the Company.
(iv) The Executive shall have the option of purchasing the interest of the Company or any of its affiliates in any split-dollar life insurance on the life of Executive for the Company's investment in the contract, exercisable at any time within thirty (30) days after the Termination Date; and the Company agrees during the Employment Term not to terminate, sell, transfer or otherwise dispose of any such insurance without first allowing Executive the opportunity to exercise such option. For the thirty-six (36) month period after the Termination Date, the Company shall continue to provide group term life insurance (or comparable term coverage) in the same face amount and on substantially the same terms as in effect for the Executive just prior to the Effective Time. At the end of the thirty-six (36) month period, the Executive shall have any conversion rights as regards such coverage as are provided by law.
(v) 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"). Notwithstanding anything herein contained to the contrary, the payments and benefits provided in this Section 6(a) (other than the Accrued Obligations) shall not be paid or provided to the Executive unless and until he executes a Complete and Permanent Release (the "Release") in the form attached hereto, and the applicable period for rescission of the Release has expired. The parties agree that the Release may be expanded to include any company acquiring the Company and its affiliates as "Released Parties," as defined in the Release.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODTermination by the Company other than for Death or Disability; OTHER THAN FOR CAUSE, DEATH OR DISABILITY-------------------------------------------------------------- Termination by Xxxxxx for Good Reason. If, during the Employment Engagement Period, the ------------------------------------- Company shall terminate the Executive's employment Xxxxxx'x consulting engagement other than for Cause death or Disability Disability, or the Executive Xxxxxx shall terminate employment either his consulting engagement for Good Reason or without any reason during the Window PeriodReason, then in consideration of Xxxxxx'x services rendered prior to such termination and of Xxxxxx'x covenants contained in Section 9 hereof:
(i) the Company shall pay to the Executive Xxxxxx 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 Annual Base Salary Xxxxxx'x Compensation through the Date of Termination to the extent not theretofore paid paid, and (2) any compensation previously deferred by the Executive Xxxxxx (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (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 (2ii) the sum Company shall continue to pay to Xxxxxx his Compensation in accordance with 6(a) hereof for the period beginning on the Date of (x) Termination and ending on the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(ii) paid or payable in respect last day 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 scheduled Engagement Period (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 remainder of the Employment Remaining Engagement 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, 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"); and
(iiiii) for the remainder of the Employment Remaining Engagement Period, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive Xxxxxx and/or the Executive's Xxxxxx'x 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 4(b)(iv6(b) of this Agreement if the Executive's employment Xxxxxx'x engagement had not been terminated or, if more favorable to Xxxxxx, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, provided, however, that if the Executive Xxxxxx becomes reemployed 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 (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit ContinuationBenefits"). 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
(iiiiv) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family Xxxxxx any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family Xxxxxx 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"). With respect to the provision of Other Benefits, the term Other Benefits as utilized in this Section 8(a) shall include, without limitation, Xxxxxx'x continued use during the Engagement Period of a Company automobile as provided in Section 6(e) hereof.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, ------------------------------------------------------ during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's his Annual Base Salary (plus $40,000 until such time as the Annual Base Salary equals $240,000) through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the higher of (I) the Target Annual Bonus and (2II) the Annual Bonus paid or payable, including any portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve full months or during which he was employed for less than twelve full months), for any completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive him (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) ), (2), and (23) shall be being 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 2.99 and (2) the sum of (x) the Executive's greater of $240,000 or his Annual Base Salary and (y) any bonus described in Section 4(b)(iithe Highest Annual Bonus.
(ii) paid or payable in respect of the most recently completed fiscal year of Executive shall immediately become fully 100% vested under the Company; and's qualified defined benefit retirement plan and benefits restoration plan (together, 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 excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") in which the Executive would receive participates, as if the Executive's his employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and his compensation in each of the three years is 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, required by Section 4(b)(i) 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 payableii), if any, under the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and;
(iiiii) for three years after the remainder Date of the Employment PeriodTermination, or such longer period as any plan, program, practice or policy may providebe provided by the terms of the appropriate Program, the Company shall continue benefits to the Executive and/or the Executive's his family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies Programs described in Section 4(b)(iv) of this Agreement if the Executive's his employment had not been terminated or, if more favorable to him, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives affiliates and their families during the 90-day period immediately preceding the Applicable Datefamilies, 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 provided for herein shall be secondary to those provided under such other plan during such applicable period of eligibility eligibility; and provided further that if the application of this sentence would result in material adverse tax consequences to the Company, the Company may, in lieu thereof, make cash payments to the Executive sufficient to allow him to obtain equivalent coverage for himself and his family (such continuation including to the extent necessary the election of such benefits for COBRA coverage and the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"maintenance of duplicate coverage during any pre-existing condition exclusion), and any additional cash payments necessary so that Executive will receive the full pre-tax benefit of the cash payments in lieu of coverage. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, Programs the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period; and;
(iiiiv) for a period ending on the earlier of one year from the Date of Termination or Executive's obtaining other full-time permanent employment, the Company shall, at its sole expense as incurred, provide the Executive with outplacement services that are reasonable in scope and cost in relation to his position; provided that this subparagraph shall not apply if Executive's termination was solely for "Good Reason" under the last sentence of Section 5(c);
(v) 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 he is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice Program 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 affiliates (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(vi) stock options theretofore granted to Executive shall become fully exercisable and may be exercised during a period equal to the lesser of (A) three years from the Date of Termination, or (B) ten years from the date of grant of the options.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during ------------------------------------------------------ the Employment PeriodTerm, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 five (5) days after the Termination Date of Termination the aggregate of the following amounts:
A. the The sum of of:
(1) the The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid and paid; and
(2) The product of (x) the higher of (I) the Recent Average Bonus and (II) the Annual Bonus paid or payable, including any compensation previously deferred by amount deferred, (and annualized for any fiscal year consisting of less than twelve (12) full months or for which the Executive has been employed for less than twelve (together with 12) full months) for the most recently completed fiscal year during the Employment Term, if any accrued interest or earnings thereon(such higher amount being referred to as the "Highest Annual Bonus.) and any accrued vacation pay(y) a fraction, the numerator of which is the number of days completed in each case to the extent not theretofore paid (current fiscal year through the Termination Date, and the denominator of which is 365. The sum of the amounts described in clauses Clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. the The amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three two and (2) the sum of (x) the Executive's Annual Base Salary (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) 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; andExecutive's Highest Annual Bonus;
C. a A separate lump lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the most favorable to the Executive actuarial assumptions utilized and Company contribution history with respect to the Employees Retirement Plan for Pogo Producing Company applicable retirement plan, incentive plans, savings plans and other plans described in Section 4(c) (or any successor plan thereto) (the "Retirement PlanPlans") during the 90-day twelve (12) month period immediately preceding the Applicable Dateimmediately
(i) 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 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, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during Growth component of the 90-day period immediately preceding retirement program of the Applicable DateCompany, the Executive would receive two times eight percent (8%) (or sixteen percent (16%)) of the sum of the Executive's Annual Base Salary (determined in accordance with subsection C of Section 6(a)(i)) and the Executive's Highest Annual Bonus; and (ii) with respect to the Incentive Savings component of the retirement program of the Company, the Executive would receive two times the annual Company match of fifty percent (50%) of the Executive's actual benefit (paid or payable), if any, under maximum allowable contribution to the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to assuming Executive's compensation is as the "Supplemental Retirement Amount")set forth above; and
D. The amount equal to the product of (i) two and (ii) the sum of (x) the imputed income reflected on Executive's W-2 attributable to the car provided to Executive by the Company or its affiliates for the last calendar year ending before the Effective Date and (y) the club dues for Executive paid by the Company or its affiliates attributable to such year.
(ii) for For twenty-four (24) months after the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provideTermination Date, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 peer executives who are active employees and their families during the 90-day period immediately preceding the Applicable Date, as in effect from time to time thereafter; 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 eligibility, provided that the aggregate coverage of such benefits for the applicable period herein set forth shall be hereinafter referred combined benefit plans is no less favorable to as "Welfare Benefit Continuation")the Executive, in terms of amounts and deductibles and costs to him, than the coverage required hereunder. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policieshealth insurance, the Executive shall be considered to have remained employed until the end of the Employment Period such twenty-four (24) month period and to have retired on the last day of such period. If the Executive would qualify at the end of such twenty-four (24) month period for retiree health insurance under the Company's plan guidelines as in existence on the Effective Date, the Company shall provide to the Executive and his or her spouse, for life, retiree health insurance, subsidized to at least the same percentage extent as under the Company's plan as in existence on the Effective Date. Such retiree health insurance shall provide medical benefits to the Executive and/or the Executive's spouse in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives who are active employees and their spouses as in effect from time to time thereafter; andprovided, however, that if the Executive and/or the -------- ------- Executive's spouse qualifies for coverage by Medicare or any successor program, the Company may require that the Executive and/or the Executive's spouse fully participate in Medicare and pay the premiums therefor personally.
(iii) The Executive shall have the right to purchase the car provided to him by the Company or its affiliates during the twelve (12) month period immediately preceding the Effective Date (or a comparable car acceptable to the Executive if such car is no longer owned by the Company or its affiliates), at the book value thereof on the Termination Date, exercisable within thirty (30) days after the Termination Date; and if the car is not purchased, Executive shall return the car to the Company.
(iv) For the twenty-four (24) month period after the Termination Date, the Company shall continue to provide group term life insurance (or comparable term coverage) in the same face amount and on substantially the same terms as in effect for the Executive just prior to the Effective Time. At the end of the twenty-four (24) month period, the Executive shall have any conversion rights as regards such coverage as are provided by law.
(v) 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"). Notwithstanding anything herein contained to the contrary, the payments and benefits provided in this Section 6(a) (other than the Accrued Obligations) shall not be paid or provided to the Executive unless and until he executes a Complete and Permanent Release (the "Release") in the form attached hereto, and the applicable period for rescission of the Release has expired. The parties agree that the Release may be expanded to include any company acquiring the Company and its affiliates as "Released Parties," as defined in the Release.
Appears in 1 contract
Samples: Change of Control Agreement (Marshall & Ilsley Corp/Wi/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the ------------------------------------------------------ Employment Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the higher of (I) the Recent Annual Bonus and (2II) the Annual Bonus paid or payable, including any compensation previously bonus or portion thereof that has been earned but deferred by (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 (together with any accrued interest or earnings thereonsuch higher amount, the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three and (2ii) 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 CompanyHighest Annual Bonus; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect during each of the 90-day period immediately preceding the Applicable Datethree years is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii2) for three years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue welfare benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion provided, that the cost of such outplacement shall not exceed 30% of the sum of the Executive's Annual Base Salary and Highest Annual Bonus; and
(iii4) 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 that 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 Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as benefits, the "Other Benefits").
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood ------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment ------------------------------------------------- Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the higher of (I) the Recent Annual Bonus and (2II) 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 (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three and (2ii) 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 CompanyHighest Annual Bonus; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that 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 remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect each year during the 90-day period immediately preceding remainder of the Applicable DateEmployment Period is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii2) for the remainder of the Employment Period, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its the affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion;
(4) any unvested stock options and restricted stock granted on or prior to the date hereof shall become immediately vested and exercisable, and all options granted on or prior to the date hereof that are vested, but unexercised, as of the Date of Termination shall remain exercisable for the period during which they would have been exercisable absent the termination of the Executive's employment;
(5) for the remainder of the Employment Period, the Company shall maintain the Split Dollar Agreement and continue to pay all premiums due under the Split Dollar Agreement and the Insurance Policy; provided, however, that upon or at any time prior to the expiration of such three- year period, the executive or the then owner of the Insurance Policy may terminate the Split Dollar Agreement and the Collateral Assignment Agreement by paying to the Company an amount equal to the total amount of the premiums advance by the Company (or its predecessor and their affiliates) in accordance with the Split Dollar Agreement as of the date of termination of the Split Dollar Agreement, minus any withdrawals of cash value or loan proceeds received by the Company or its affiliates from the cash value of the Insurance Policy and which were made to the Company or its affiliates as of the date of the termination of the Split Dollar Agreement (such payment may, in the discretion of the Executive or other owner of the policy, be made in cash or may be accomplished by means of a loan or withdrawal of cash values of the Insurance Policy which is authorized by the Executive or such other owner of the Insurance Policy) (the "Insurance Policy Buy-Out Option"); and
(iii6) 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 that 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 the 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 benefits, the "Other Benefits").
Appears in 1 contract
Samples: Employment Agreement (National Commerce Bancorporation)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during a Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the a Window Period:
(i) the Company shall pay or provide to or in respect of the Executive the aggregate of the following amounts and benefits:
A. 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 Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the highest annual bonus paid or accrued for the benefit of Executive during the three year period preceding the Date of Termination and (2y) a fraction, the numerator of which is the number of days since the date of the last bonus payment through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred or earned by the Executive (together with any accrued interest or earnings thereon) ), any unreimbursed expenses and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (23) shall be hereinafter referred to as the "Accrued ObligationsObligation"); and
B. in a lump sum in cash within 30 days after the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to Date of Termination the product of (1) three and (2) multiplying the factor of 5 times the sum of (x) the Executive's highest Annual Base Salary and (y) any the highest annual bonus described in Section 4(b)(ii) paid or which has been 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 within the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. past three years (including such salary and bonus paid by 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 previous employer which is a direct subsidiary of the Company and its affiliated companies providing benefits for as of 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) date of this Agreement 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, 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 Executiveone year'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"); andservice.
(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)(iv2(b)(iii) 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 on the 90-day period immediately preceding Effective Date or, if more favorable to the Applicable DateExecutive, provided, however, that if as in effect generally at any time thereafter with respect to other executives of the Executive becomes reemployed with another employer Company and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical its affiliated companies and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility their families (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 policiespolicies and for purposes of determining Vesting Service (as defined in the Reading & Bates Pension Plan) under the Reading & Bates Pension Plan and xxx Reading & Bates Benefits Repxxxxxent Plan, the Executive shall be considered xxxxxdered 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. (a) GOOD REASON OR DURING THE WINDOW PERIODTermination by the Company Other Than for Cause or Disability; OTHER THAN FOR CAUSE, DEATH OR DISABILITYTermination by the Executive for Good Reason. If, during the Employment PeriodTerm of Employment, the Company shall terminate terminates the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate terminates employment either for Good Reason or without any reason during within a period of 90 days after the Window Periodoccurrence of the event giving rise to Good Reason, then and, with respect to payments and benefits described in clauses (i)(B), (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:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's Annual Base Salary through the Date date of Termination termination to the extent not theretofore paid and paid, (2) any compensation previously deferred by the Executive annual bonus payable under Section 4(b),
(together with any accrued interest or earnings thereonB) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
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 annual Base Salary in effect as of the date of termination, and (y) any 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 described in Section 4(b)(ii) paid or payable applicable to the Executive under the MIP in respect of the most recently completed Company's 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) date 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 Datetermination occurs, and (2y) the actuarial equivalent (utilizing for this purpose number of years remaining in the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Applicable Date) Term of Employment as of the Executive's actual benefit date of termination (paid or payablewith any fractional years treated as whole years), if any, under the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and.
(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 remainder remaining Term of the Employment Period, or such longer period as any plan, program, practice or policy may provideEmployment, 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, programs, practices and policies plans described in Section 4(b)(iv) 4 of this Agreement if the Executive's employment had not been terminated terminated, which coverage shall be in accordance with addition to and shall not reduce any continuation coverage required under the most favorable plans, practices, programs or policies Consolidated Omnibus Budget Reconciliation Act 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, 1985 ("COBRA"); provided, however, that such benefits shall cease if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare dental benefits under the plan of 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 periodemployer; and
(iiiiv) 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"). 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 7 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. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during Termination by the Employment Period, Executive for Good Reason or by the Company shall terminate Other than for Cause. If the Executive's employment other than for Cause or Disability or is terminated by the Executive shall terminate employment either for Good Reason or without any reason during by the Window PeriodCompany other than for Cause:
(i) the Company shall pay to the Executive in Executive, within 10 days following the Date of Termination, a lump sum amount in cash within 30 days after equal to the Date of Termination the aggregate of the following amountssum of:
A. the sum of (1A) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid previously paid;
(B) an amount equal to the Executive's Bonus for the fiscal year prior to the Date of Termination, to the extent such Bonus has been earned but not paid, and for the fiscal year that includes the Date of Termination, the product of (a) the Executive's Target Bonus (or, if the Executive's Date of Termination occurs within two years after a Change in Control, the amount of the Bonus to which the Executive would be entitled assuming that he continued to be employed for the entire fiscal year and all applicable performance goals or objectives were achieved at the maximum level) and (2b) a fraction, the numerator of which shall be the number of days from the beginning of such fiscal year to and including the Date of Termination and the denominator of which shall be three hundred and sixty-five (365); and
(C) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the previously paid. The amounts described specified in clauses (1A), (B) and (2C) hereof 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 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, 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"); and;
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits pay to the Executive and/or Executive, within 10 days following the Executive's family at least Date of Termination, a lump sum amount, in cash, 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").three times the
Appears in 1 contract
Samples: Employment Agreement (Usec Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability (and other than a termination due to death) or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) the Special Bonus, if due to the Executive pursuant to Section 4(b)(iii), to the extent not theretofore paid and (24) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) shall be hereinafter referred to as at 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 one and one-half (1.5) 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 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, 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")Highest Annual Bonus; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv4(b)(v) 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").the
Appears in 1 contract
Samples: Management Continuity Agreement (Software Spectrum Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood ------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment ------------------------------------------------- Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the The Company shall pay to the Executive Executive, in a lump sum in cash within 30 10 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the Annual Target Bonus times a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (2iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three and (2) times 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; andAnnual Target Bonus, provided further, that such amount shall be reduced by any lump sum severance amount payable to the present value (determined as provided in Section 280G(d)(4) Executive pursuant to the General Retirement Plan for Employees of the Internal Revenue Code of 1986, as amended Xxxxxxxxx Technology Corporation or any successor thereto (the "CodeGRP").
(2) 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 For three years after the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date 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, 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"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement or 3(b)(6) (including, without limitation, tax and financial planning services to the extent the Executive was entitled to such services under Section 3(b)(6)) if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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; andeligibility.
(iii3) to To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which that 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 Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as benefits, the "Other Benefits").
(4) The Company shall at its sole expense provide the Executive with reasonable outplacement services, at a cost not to exceed $20,000, during the one-year period following the Executive's Date of Termination. The Executive shall not, however, be entitled to any payment in lieu of accepting outplacement assistance services.
(5) Notwithstanding any contrary provision of this Agreement or any other agreement between the Executive and the Company, or of the Supplemental Retirement Plan for Executives of Xxxxxxxxx Technology Corporation (the "CSRP"), upon the Executive's Date of Termination, the Executive will be considered to have attained the greater of age 62 or the Executive's actual age, and to have completed the greater of five years of service, or the Executive's actual number of years of service, and therefore will be entitled to retire with an immediate pension under Section 7(A) of the CSRP, and to:
(A) receive the normal supplemental executive retirement benefit payable to the Executive under Section 5 of the CSRP, based on the sum of the Executive's actual years of service, plus an additional 3 years, and the greater of the Executive's attained age or age 62, reduced in accordance with Section 6(C) of the CSRP. Notwithstanding the provisions of Section 6(C) of the CSRP, the reduction provided therein shall be based on the benefits actually payable to the Executive under the GRP, the Benefit Equalization Plan of Xxxxxxxxx Technology Corporation, the Earnings Adjustment Plan of Xxxxxxxxx Technology Corporation, the Officers' Supplemental Retirement Plan of Xxxxxxxxx Technology Corporation, and the Executive's primary Social Security retirement benefit, beginning when the Executive actually commences receipt of those benefits;
(B) receive a special supplemental benefit payable for life to the Executive under the CSRP in an amount equal to the benefits that would have been payable to the Executive under the Retirement Plan had the Executive attained age 62 and completed the greater of ten years of service or the Executive's actual number of completed years of service, plus an additional 3 years of service. This benefit shall be reduced, beginning when the Executive actually commences receipt of the benefits to which the Executive is entitled under the Retirement Plan, by the benefit actually payable to the Executive under the Retirement Plan at that time. The benefit payable under this Section 5(a)(4)(B) will be paid in the same form, and the necessary adjustments computed using the same actuarial methods and assumptions, as the Executive has elected with respect to the Executive's benefit under the Retirement Plan, or if no such election has been made, in the form of an annuity for the Executive's life and, if the Executive is married as of the Executive's Date of Termination, 50% of that amount payable to the Executive's surviving spouse for the spouse's life; and
(C) participate in, and receive coverage under, any post- retirement medical and life insurance benefits sponsored by the Company for executive-level employees who retire from active service, in accordance with the terms of any such plan as in effect during the 90 days preceding the Change of Control, or as such plans may be subsequently improved. If the Company determines to amend any such plan in any way that could reasonably be expected to be adverse to the Executive, or to discontinue any such plan, the Company will pay the Executive an amount in cash, payable annually in advance, sufficient to enable the Executive, after the payment of any income or payroll taxes imposed on such amount, to pay the premiums necessary to maintain in effect, on an individual basis, insurance at least equal to that provided to the Executive by the Company immediately before any such amendment or termination. Any such insurance shall be provided by the insurer(s) selected by the Executive, provided, that if the Company is able to procure such coverage at a lower cost from another insurer rated by Xxxxx'x rating service at least equal to the rating of the insurer selected by the Executive, and requiring no more proof of insurability than the insurer selected by the Executive, the Executive shall accept coverage from such insurer.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSETermination for Good Reason or for Reasons Other Than for Cause, DEATH OR DISABILITYDeath or Incapacity. If, during the Employment PeriodTerm, the Company shall terminate the Executive's employment other than for Cause or Disability Incapacity or the Executive shall terminate his or her employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash cash, within 30 five business days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's currently effective Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three three1 and (2) the sum of (x) the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(ii) paid his 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 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, 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"); andher Annual Bonus;
(ii) for three years2 after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any plan, program, practice or policy may providebe provided by the terms of the appropriate Company Plan, the Company shall continue health and life insurance benefits, perquisites and fringe benefits to the Executive and/or and the Executive's eligible family members 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 Company Plans if the Executive's employment had not been terminated in accordance with or, if more favorable to the most favorable plansExecutive, 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 Dateat any time thereafter, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical health or other welfare life insurance benefits, perquisites and fringe benefits under another employer provided planemployer's plans, the medical Company's obligations under this Section 5(a)(ii) shall cease; ----------------- 1 For three of the nine executives covered by individual agreements, the multiplier will be two, rather than three. The executives covered, respectively, by the 3x and other welfare benefits described herein 2x multipliers are set forth on Schedule A hereto.
(iii) the Company shall, at its sole expense as incurred, provide the Executive with reasonable out placement services for a period of up to one year from the Date of Termination, the provider of which 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 selected by 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 periodin his or her sole discre tion; and
(iiiiv) to the extent not theretofore paid or providedpro vided, 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 planCompany Plan, program, policy or practice or contract or agreement of the Company including earned but unpaid stock 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 similar compensation (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Samples: Executive Agreement (Itt Corp /Nv/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy Executive for Good Reason; OTHER THAN FOR CAUSEBy the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause Cause, Death or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) subject to Section 11(l), the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2) any compensation previously deferred Executive’s business expenses that are reimbursable pursuant to Section 3(b)(v) but have not been reimbursed by the Executive Company as of the Date of Termination; (together with any accrued interest or earnings thereon3) and 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, in each case pay to the extent not theretofore paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the “Accrued Obligations”); and (5) an amount equal to the product of (x) the Recent Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 (the “Pro Rata 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 (21) or clause (3), and such portion shall not be hereinafter referred to considered as part of the "“Accrued Obligations"” but shall instead be an “Other Benefit” (as defined below); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three two and (2) the sum of (x) the Executive's ’s Annual Base Salary and (y) any bonus described the greater of the Annual Cash Bonus (at target) in Section 4(b)(ii) paid the year of a Change in Control or the average of the Annual Cash Bonus earned by Executive during the three years prior to a Change in Control (including the full value of the Annual Cash Bonus, whether 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"cash or another form)) 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 (C) an amount 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 Affiliates contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or its Affiliates, in which Executive participates as of immediately prior to the Date of Termination (or, if more favorable to Executive, the "SERP"plans as in effect immediately prior to the Effective Date) which (collectively, the “Savings Plans”) that Executive would receive if the Executive's ’s employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for the remainder two year period following the Date of Termination (the Employment “Benefits Period”), assuming for this purpose that all accrued benefits are (A) Executive is fully vested and that benefit accrual formulas are no less advantageous 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 Executive than those in effect during Annual Base Salary and the 90-day period immediately preceding the Applicable DateRecent Bonus, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (2C) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized Executive received an Annual Bonus with respect to the Retirement Plan during year in which the 90-day period 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 already been credited to Executive under the 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 preceding prior to the Applicable 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; and
(D) an amount equal to the product of (A) the sum of (x) 150% of the monthly premiums for coverage under the Company’s or and its Affiliates health care plans for purposes of continuation coverage under 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 (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 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), and (B) the number of months in the Benefits Period; and
(E) all of the Executive's ’s equity awards subject to performance-based vesting (“Performance Awards”) will become fully vested as of the date of termination of employment: (i) based on actual benefit performance measured as of the most recent completed fiscal quarter, and (paid or payable)ii) if actual performance cannot be determined, if any, under all Performance Awards will vest as to all shares subject to an outstanding Performance Award at the Retirement Plan target performance level; and all of the SERP (Executive’s equity awards subject to time-based vesting will become fully vested as of the amount date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount")termination of employment; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall, at its sole expense as incurred, provide Executive with outplacement services the scope and provider of which shall continue benefits be selected by the Company prior to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 Effective Date, ; provided, howeverfurther, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare such outplacement 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 not later than the last day of such periodthe second calendar year that begins after the Date of Termination; and
(iii) except as otherwise set forth in the last sentence of Section 6, 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 that 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 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. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during ------------------------------------------------------ the Employment PeriodTerm, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 five (5) days after the Termination Date of Termination the aggregate of the following amounts:
A. the The sum of of:
(1) the The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid and paid; and
(2) The product of (x) the higher of (I) the Recent Average Bonus and (II) the Annual Bonus paid or payable, including any compensation previously deferred by amount deferred, (and annualized for any fiscal year consisting of less than twelve (12) full months or for which the Executive has been employed for less than twelve (together with 12) full months) for the most recently completed fiscal year during the Employment Term, if any accrued interest or earnings thereon(such higher amount being referred to as the "Highest Annual Bonus.) and any accrued vacation pay(y) a fraction, the numerator of which is the number of days completed in each case to the extent not theretofore paid (current fiscal year through the Termination Date, and the denominator of which is 365. The sum of the amounts described in clauses Clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. the The amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three two and (2) the sum of (x) the Executive's Annual Base Salary (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) 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; andExecutive's Highest Annual Bonus;
C. a A separate lump lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Employees Retirement Plan for Pogo Producing Company most
(or any successor plan theretoi) (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 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, and (2) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during Growth component of the 90retirement program of the Company, the Executive would receive two times eight percent (8%) (or twenty-day period immediately preceding four percent (24%)) of the Applicable Datesum of the Executive's Annual Base Salary (determined in accordance with subsection C of Section 6(a)(i)) and the Executive's Highest Annual Bonus; and (ii) with respect to the Incentive Savings component of the retirement plan of the Company, the Executive would receive two times the annual Company match of fifty percent (50%) of the Executive's actual benefit (paid or payable), if any, under maximum allowable contribution to the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to assuming Executive's compensation is as the "Supplemental Retirement Amount")set forth above; and
D. The amount equal to the product of (i) two and (ii) the sum of (x) the imputed income reflected on Executive's W-2 attributable to the car provided to Executive by the Company or its affiliates for the last calendar year ending before the Effective Date and (y) the club dues for Executive paid by the Company or its affiliates attributable to such year.
(ii) for For twenty-four (24) months after the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provideTermination Date, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 peer executives who are active employees and their families during the 90-day period immediately preceding the Applicable Date, as in effect from time to time thereafter; 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 eligibility, provided that the aggregate coverage of such benefits for the applicable period herein set forth shall be hereinafter referred combined benefit plans is no less favorable to as "Welfare Benefit Continuation")the Executive, in terms of amounts and deductibles and costs to him, than the coverage required hereunder. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policieshealth insurance, the Executive shall be considered to have remained employed until the end of the Employment Period such twenty-four (24) month period and to have retired on the last day of such period. If the Executive would qualify at the end of such twenty-four (24) month period for retiree health insurance under the Company's plan guidelines as in existence on the Effective Date, the Company shall provide to the Executive and his or her spouse, for life, retiree health insurance, subsidized to at least the same percentage extent as under the Company's plan as in existence on the Effective Date. Such retiree health insurance shall provide medical benefits to the Executive and/or the Executive's spouse in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives who are active employees and their spouses as in effect from time to time thereafter; andprovided, however, that if the Executive -------- ------- and/or the Executive's spouse qualifies for coverage by Medicare or any successor program, the Company may require that the Executive and/or the Executive's spouse fully participate in Medicare and pay the premiums therefor personally.
(iii) The Executive shall have the right to purchase the car provided to him by the Company or its affiliates during the twelve (12) month period immediately preceding the Effective Date, if applicable, (or a comparable car acceptable to the Executive if such car is no longer owned by the Company or its affiliates), at the book value thereof on the Termination Date, exercisable within thirty (30) days after the Termination Date; and if the car is not purchased, Executive shall return the car to the Company.
(iv) For the twenty-four (24) month period after the Termination Date, the Company shall continue to provide group term life insurance (or comparable term coverage) in the same face amount and on substantially the same terms as in effect for the Executive just prior to the Effective Time. At the end of the twenty-four (24) month period, the Executive shall have any conversion rights as regards such coverage as are provided by law.
(v) 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").
(a) (other than the Accrued Obligations) shall not be paid or provided to the Executive unless and until he executes a Complete and Permanent Release (the "Release") in the form attached hereto, and the applicable period for rescission of the Release has expired. The parties agree that the Release may be expanded to include any company acquiring the Company and its affiliates as "Released Parties" as defined in the Release.
Appears in 1 contract
Samples: Change of Control Agreement (Marshall & Ilsley Corp/Wi/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, ------------------------------------------------------ during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any compensation previously bonus or portion thereof which has been earned but deferred by (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 most recently completed fiscal year during the Employment Period, if any (together with any accrued interest or earnings thereonsuch higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, and (3) any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (23) 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) the lesser of three and the number of years and fractions thereof remaining between the Date of Termination and the Executive's Normal Retirement Date (such lesser number, the "Multiplier") and (2) the sum of (xw) the Executive's Annual Base Salary and Salary, (x) the Highest Annual Bonus, (y) any bonus described in Section 4(b)(iithe higher of (I) paid or payable in respect the Recent Long-Term Incentive Value and (II) the highest value, on an annualized basis, of the most recently completed fiscal year Executive's long-term incentive compensation (whether in cash, equity awards, or a combination thereof) in effect following the Effective Date, and (z) the amount of the employer matching contributions (not including any performance contribution) made to the Executive's account in the Company; and's Savings and Investment Plan and the Savings and Investment Parity Plan or any successor to either of them with respect to the most recent plan year that ended before the Effective Date or, provided furtherif higher, for the most recent plan year that ended after the Effective Date (in either case annualized to the extent such amount shall be reduced by the present value (determined as provided in Section 280G(d)(4) plan year consisted 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 less than 12 months and/or the Executive upon termination of employment of was not eligible to participate in such plan for the Executive under any severance plan, severance policy or severance arrangement of the Companyfull plan year); and
C. a separate lump sum supplemental retirement benefit an amount equal to the difference between (1a) 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 aggregate benefit payable under the Retirement Monsanto Pension Plan and any supplemental and/or excess successor thereto, and any other qualified defined benefit retirement plan plans of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "Retirement Plan") and the Monsanto Company ERISA Parity Pension Plan, the Monsanto Company Supplemental Retirement Plan, and any successors thereto, any other "top hat," excess or supplemental defined benefit retirement plans of the Company and its affiliated companies in which the Executive participates, and any Individual SERP (collectively, the "SERP") which the Executive would receive have accrued (whether or not vested) if the Executive's employment had continued at for a number of years after the Date of Termination equal to the Multiplier, and (b) the actual vested benefit, if any, of the Executive under the Retirement Plan and the SERP, determined as of the Date of Termination (with the foregoing amounts to be computed on an actuarial present value basis, based on the assumption that the Executive's compensation level provided for in Sections during such period of deemed continued employment after the Date of Termination was that required by Section 4(b)(i) and Section 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 using actuarial assumptions no less advantageous favorable to the Executive than the most favorable of 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) purposes of the Executive's actual computing benefit (paid or payable), if any, entitlements under the Retirement Plan and the SERP (at any time from the amount day before the Effective Date) through the Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii) for a number of years after the remainder Executive's Date of Termination equal to the Employment PeriodMultiplier, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may provide(such number of years or longer period, the "Welfare Benefits Continuation 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 accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, 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 planplan during the Welfare Benefits Continuation Period, 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 eligibility; and 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 Welfare Benefits Continuation Period and to have retired on the last day of such period; and provided, further, that if the Executive has reached age 50 as of the Date of Termination, then the Executive shall be fully vested in, and shall be entitled to receive, beginning at the end of the Welfare Benefits Continuation Period, lifetime retiree medical benefits at least as favorable as those to which the Executive would have been entitled if the Executive had retired with full eligibility for benefits under the retiree medical benefit plans and programs of the Company and its Affiliated Companies in effect as of the Effective Date;
(iii) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion; and
(iiiiv) 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
Samples: Employment Agreement (Monsanto Co)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Change of Control Period, the Company shall terminate the Executive's employment other than for Cause or Disability employment/consulting arrangement, or the Executive shall terminate employment either employment/consulting arrangement under this Agreement for Good Reason or without any reason during the Window PeriodReason:
(ia) 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 (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product average of his annual base salary/consulting fees and bonuses for the five year period prior to the date of termination, for a period of three years;
(1) three and (2b) the sum of (x) Company shall pay the Executive up to $25,000 for executive outplacement services utilized by the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(ii) paid or payable in respect of , on the most recently completed fiscal year of the Company; and, provided further, that such amount shall be reduced receipt by the present value (determined as provided in Section 280G(d)(4) Company of the Internal Revenue Code of 1986, as amended (the "Code")) of any written receipts or 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 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, 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"); andappropriate documentation;
(iic) for the remainder of the Employment Periodthree years, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or and, where applicable, the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) existence on the date of this Agreement the change of control if the Executive's employment employment/consulting arrangement 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, terminated; provided, however, that if the Executive becomes reemployed with another employer employed elsewhere and is eligible to receive medical or other thereby afforded comparable insurance and 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 by the Company as of eligibility (such continuation the date of this Agreement, the Company's obligation to continue providing the Executive with such benefits for shall cease or be correspondingly reduced, as 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 periodcase may be; and
(iiid) to the extent not theretofore paid or providedany outstanding stock options, the Company shall timely pay or provide to stock appreciation rights and restricted stock held by the Executive and/or pursuant to any Company stock plan shall immediately become vested, exercisable, and freely transferable, as the Executive's family case may be, as to all or any other amounts or benefits required to be paid or provided or which part of the shares covered by those plans, with the Executive and/or being able to exercise his or her stock options and other rights within a period of twelve months following the Executive's family is eligible to receive pursuant to this Agreement and date of termination or such longer period as may be permitted under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect plans 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")agreements.
Appears in 1 contract
Samples: Change of Control Agreement (CVF Technologies Corp)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODOther than for Cause, ------------------------------------------- -------------------- Death or Disability; OTHER THAN FOR CAUSE, DEATH OR DISABILITYGood Reason. If, during the Employment Protected Period, the Company shall terminate -------------------------------- terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during and the Window Period:Executive executes a release substantially in the form attached hereto as Exhibit A (a "Release"):
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, or if later, within 5 days after the Executive executes the Release, the aggregate of the following amounts:
A. (A) the sum of the following amounts, to the extent not previously paid to the Executive (1the "Accrued Obligations"): (i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and Termination; (2ii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum a pro rata portion of the amounts described Annual Bonus for the year in clauses (1) and (2) shall be hereinafter referred to which the Date of Termination occurs, computed as the "Accrued Obligations"); and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1x) three the Severance Annual Bonus Amount, and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365; and (iii) any accrued pay in lieu of unused vacation; and
(B) the product of (i) [three] [two] and (ii) the sum of (x) the Executive's Annual Base Salary and Amount, (y) any bonus described in Section 4(b)(iithe Severance Annual Bonus Amount, and (z) paid or payable in respect the amount of the employer matching contributions made or credited to the Executive's accounts in the Savings Plans for the most recently completed fiscal recent plan year that ended before the date of the Company; andChange of Control or, provided furtherif higher, for the most recent plan year that such amount shall be reduced by ended after the present value (determined as provided in Section 280G(d)(4) date of the Internal Revenue Code Change of 1986, as amended Control (in either case annualized to the "Code")) extent such plan year consisted of any other amount of severance relating to salary or bonus continuation to be received by less than 12 months and/or the Executive upon termination of employment of was not eligible to participate in such Savings Plan for the Executive under any severance plan, severance policy or severance arrangement of the Companyfull plan year); and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) 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 aggregate benefit payable under the Retirement Plan Plan, the SERP and any supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") which Individual SERP that the Executive would receive have accrued (whether or not vested) if the Executive's employment had continued at for the Severance Period, based on the assumption that the Executive's compensation level provided for in during the Severance Period was that required by Sections 4(b)(i2(b)(1) and 4(b)(ii2(b)(2), over (ii) of this Agreement for the remainder actual vested benefit, if any, of the Employment PeriodExecutive under the Retirement Plan, assuming for this purpose that all accrued benefits are fully vested the SERP and that any Individual SERP, in each case, determined as a single lump sum benefit accrual formulas are amount as of the Date of Termination, on an actuarial present value basis, using actuarial assumptions no less advantageous favorable to the Executive than the most favorable of 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) purposes of the Executive's actual computing benefit (paid or payable), if any, enti- tlements under the Retirement Plan and the SERP (at any time from the amount day before the date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andChange of Control;
(ii2) for the remainder of the Employment Severance Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits Specified Welfare 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, family; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare medical, dental, prescription drug and vision benefits under another employer employer-provided planplan during the Severance Period, the medical and other welfare benefits described herein comparable Specified Welfare Benefits shall be secondary to those provided under such other plan during such applicable period of eligibility while the Executive is so eligible;
(such continuation of such benefits 3) for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining the Executive's eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policiesRetiree Welfare Benefits, the Executive shall be considered to have remained employed until the end of the Employment Severance Period and to have retired on the last day of such period, and, if the Executive has reached age 50 as of the Date of Termination, then the Executive shall be fully vested in, and shall be entitled to receive, beginning at the end of the Severance Period, lifetime retiree medical benefits at least as favorable as those to which the Executive would have been entitled if the Executive had retired with full eligibility for the Retiree Welfare Benefits in effect as of the date of the Change of Control;
(4) the Company shall provide the Executive with outplacement services, in accordance with its normal practice for its most senior executives, as in effect before the date of the Change of Control, from the outplacement firm or firms with which the Company has contracted as of the Date of Termination or thereafter; [provided, that the cost to the Company shall not exceed __% of the Annual Base Salary]; and
(iii5) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or any Other Benefits. Notwithstanding the foregoing: (i) if the Company determines that it is not possible to provide any of the Specified Welfare Benefits or Retiree Welfare Benefits as required above through plans sponsored by the Company and the Affiliated Companies under the terms thereof, or that providing any of the Specified Welfare Benefits or Retiree Welfare Benefits through such plans would have adverse tax consequences for the Executive's family , then the Company shall provide such Specified Welfare Benefits or Retiree Welfare Benefits in a manner that keeps the Executive in the same position, on an After-Tax basis, as if the Executive had remained employed by the Company during the Severance Period; provided, that if it is not reasonably practicable to so provide such Specified Welfare Benefits or Retiree Welfare Benefits, then the Company shall, instead, make a cash payment that is equal, on an After-Tax basis, to the value of such Specified Welfare Benefits or Retiree Welfare Benefits; and (ii) any other amounts or disability benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive might otherwise become entitled 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 Specified Welfare Benefits shall begin at the 90-day period immediately preceding conclusion of the Applicable Date (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")Severance Period.
Appears in 1 contract
Samples: Change of Control Employment Security Agreement (Monsanto Co /New/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEBy the Company other than for Cause, DEATH OR DISABILITY. IfDeath or Disability, or by the Executive for Good Reason.
(i) If during the Employment Period, the Company shall terminate terminates the Executive's employment employment, other than for Cause Cause, death, or Disability Disability, or the Executive shall terminate terminates his employment either for Good Reason or without any reason during the Window Period:
(i) Reason, the Company shall shall: (A) pay to the Executive the Accrued Obligations (as defined in Section 5(b) below) in a lump sum cash payment within five (5) business days of the Date of Termination; (B) pay the Executive the amounts the Executive would have earned under paragraphs (a) and (b)(i) of Section 3 (other than stock options) as if he had remained employed through the end of the Severance Period (as defined below) in a lump sum cash payment within 30 five (5) business days after of the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2C) any compensation previously deferred by continue to provide the Executive with the compensation and benefits set forth in paragraphs (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1c) and (2d) shall be hereinafter referred of Section 3 as if he had remained employed by the Company pursuant to this Agreement (x) for a period of 36 months, if such termination of employment occurs prior to the second anniversary of the Effective Time or within 2 years following a Change in Control or (y) for a period of 18 months, if such termination of employment occurs following the second anniversary of the Effective Time and either prior to a Change in Control or more than 2 years following a Change in Control and, in either such case, the Executive had then terminated employment with whatever rights and benefits would have been available to Executive at that date (the period described in (x) or (y) above, as applicable, the "Accrued ObligationsSeverance Period"); and
B. PROVIDED, however, that for purposes of the amount (such amount foregoing, the Executive shall be hereinafter referred deemed to as the "Severance Amount"earn, during each year in such period, a bonus under Section 3(b)(i) 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 greater 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 average bonus continuation to be received earned 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 all incentive compensation plans of the Company and its affiliated companies providing in the three years preceding the Effective Time or the three years preceding the Date of Termination; PROVIDED further, however, that to the extent any benefits for the Executive described in paragraphs (the "SERP") which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 4(b)(ib), (c) and 4(b)(ii(d) 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 Section 3 cannot be provided pursuant to the Executive than those in effect during plan or program maintained by the 90-day period immediately preceding the Applicable Date, and (2) the actuarial equivalent (utilizing Company 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provideits executives, the Company shall continue provide such benefits outside such plan or program at no additional cost (including, without limitation, tax costs) 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 his family; 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, howeverPROVIDED further, that if during any period when the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits of the type described in clause (B) of paragraph (c)(ii) of Section 3 under another employer employer-provided plan, the medical and other welfare benefits described herein shall provided by the Company under this paragraph (a) of Section 5 may be made secondary to those provided under such other plan during such applicable period plan. In addition to the foregoing, any restrictions on restricted stock outstanding on the Date of eligibility Termination shall lapse as of the Date of Termination without regard to the termination of the Executive's employment, any outstanding incentive compensation awards with vesting and/or payment contingent upon attainment of individual, Company, or affiliate performance goals shall, for purposes of awards considered short term by National Grid, be deemed satisfied at 90% of "Maximum" level and paid, in a lump sum cash payment within five (such continuation 5) days of such benefits the Date of Termination, prorata for the applicable period herein set forth portion of the performance year through the Date of Termination and all National Grid Options outstanding as of the Date of Termination under the Scheme shall be hereinafter referred governed by the terms of the Scheme. The payments and benefits provided pursuant to this paragraph (a) of Section 5 are intended as "Welfare Benefit Continuation")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 the sole and exclusive remedy therefor. Back to Contents
(ii) For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive this Agreement. "Change in Control" 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").mean:
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during the Window Period; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITY-------------------------------------------------------------- Death or Disability. If, during the Employment Period, the Company shall ------------------- terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary amount of any Compensation for services rendered previously earned through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"" and are hereby agreed to constitute reasonable compensation for services rendered); and
B. the amount two hundred, fifty percent (such amount shall be hereinafter referred to as the "Severance Amount"250%) 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 Annual Bonus as of the most recently completed fiscal year Date 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 Termination (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 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, 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 Severance Amount"); and.
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv4(b)(v) 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 peer executives and their families during the 90-day period immediately preceding the Applicable DateEffective 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 and 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 peer executives and their families during the 90-day period immediately preceding the Applicable Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) any stock options held by the Executive pursuant to the 1989 Long Term Incentive Stock Option Agreement or any other stock option agreement with Company (the "Option Agreements") shall remain exercisable following the Effective Date and during the Employment Period notwithstanding any provision in the Option Agreements to the contrary. Further, any covenant not to compete in an Option Agreement shall become null and void as of the Effective Date. Notwithstanding any provision herein deemed to be to the contrary, nothing herein shall extend the maximum period of time in which the Executive shall have the right to exercise such options.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood ------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment ------------------------------------------------- Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the higher of (I) the Recent Annual Bonus and (2II) the Annual Bonus paid or payable, including any compensation previously bonus or portion thereof that has been earned but deferred by (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 (together with any accrued interest or earnings thereonsuch higher amount, the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three two and (2ii) 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 CompanyHighest Annual Bonus; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that the Executive would receive if the Executive's employment continued at for two years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect during each of the 90-day period immediately preceding the Applicable Datethree years is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii2) for two years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue welfare benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion provided, that the cost of such outplacement shall not exceed 30% of the sum of the Executive's Annual Base Salary and Highest Annual Bonus; and
(iii4) 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 that 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 Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as benefits, the "Other Benefits").
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSESeverance Payments Upon Resignation or Termination Other Than for ----------------------------------------------------------------- Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:--------------------------
(i) Termination Without Cause after Change in Control: If ------------------------------------------------- there occurs a change in control of the Company shall at any time, and Employee's employment as Executive Vice President is terminated (i) by the Company for any reason other than Cause or (ii) by Employee after a reduction in either responsibilities or pay or change in location unacceptable to Employee, Employee will receive the Executive in a lump following:
(A) Full immediate vesting of any issued, unvested stock options,
(B) Full payment of any accrued, unpaid Base Salary, Annual Bonus and benefit payments,
(C) A sum equal to three years of his highest to date annual Base Salary,
(D) A sum equal to three times his highest to date Annual Bonus,
(E) Three years of full benefits continuation, including health, disability and life insurance, and full Company contributions to any qualified and non-qualified retirement and pension plans or the then current value of same in cash within 30 days after if the Date terms of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination such plans preclude such participation, but only to the extent that similar benefits are not theretofore paid and (2) any compensation previously deferred received by the Executive Employee from a new employer during such three year period,
(together with any accrued interest F) If such termination occurs on or earnings thereonafter January 1, 2000, a $500,000 cash payment,
(G) In the event that Employee's employment is terminated pursuant to this item 4(a)(i) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
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 excise tax imposed by 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) 4999 of the Internal Revenue Service 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 theretopenalty or excise tax subsequently imposed by law) (applies to any payments under this item 4(a)(i), an additional amount shall be paid by the "Retirement Plan") during Company to Employee such that the 90aggregate after-day period immediately preceding tax amount that Employee shall receive under this subsection 4(a)(i), shall have a present value equal to the Applicable Date) aggregate after-tax amount that Employee would have received and retained had such excise tax not applied to you. For this purpose, Employee shall be assumed to be subject to tax in each year relevant to the computation at the then maximum applicable combined Federal and New York income tax rate, and the determination of the benefit payable under present value of payments to Employee shall be made consistent with the Retirement Plan and any supplemental and/or excess retirement plan principles of Section 280G of the Company Code, and
(H) An office and its affiliated companies providing benefits secretarial support for a period equal to 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) remaining term of this Agreement for the remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested selected by Employee 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 for by 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")Company.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Executive for Good Reason; OTHER THAN FOR CAUSEBy the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate terminates the Executive's ’s employment other than for Cause Cause, Death or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 60 days after the Date of Termination (subject to the Executive’s execution and nonrevocation, within fifty-two (52) days after the Date of Termination, of the general release attached hereto as Appendix A), the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's ’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 and as of the Date of Termination; (2iv) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case paid time off to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii), (iii) and (2) shall be hereinafter referred to as iv), the "“Accrued Obligations"); and
B. the ”) and (v) an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1x) three the Highest Annual Bonus and (2y) 0.5 (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 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 (i) two and (ii) the sum of (x) the Executive's ’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; andHighest Annual Bonus.
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 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, and (2) the actuarial equivalent for eighteen (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Applicable Date18) of months after the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP (the amount ’s Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may provide(the “Benefit Continuation Period”), the Company shall continue provide health care, life insurance benefits and long-term disability benefits to the Executive and/or the Executive's ’s family at least equal to, and at the same after-tax cost to the Executive and/or the Executive’s family, as those which that would have been provided to them in accordance with the plans, programs, practices and policies providing health care, life insurance benefits and long-term disability benefits and at the benefit level described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's ’s employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families during the 90-day period immediately preceding the Applicable Date, families; provided, however, that if the Executive becomes reemployed re-employed with another employer and is eligible to receive medical or other welfare benefits health care under another employer employer-provided plan, the medical and other welfare benefits described herein health care provided hereunder shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such eligibility. The health care benefits for provided during the applicable period herein set forth Benefit Continuation Period hereunder shall be hereinafter referred provided concurrently with any health care benefits that may be provided during such period pursuant to as "Welfare Benefit Continuation")Section 4980B of the Code. For purposes of determining eligibility and the Company’s contribution (but not the time of commencement of benefits) of the Executive for retiree welfare benefits pursuant to such the retiree welfare benefit plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end second anniversary of the Employment Period Date of Termination, and the Company shall take such actions as are necessary to have retired on cause the last day Executive to be eligible to commence in the applicable retiree welfare benefit plans as of such periodthe applicable benefit commencement date;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services, for a limited period of time not longer than six (6) months following the Executive’s Date of Termination, the scope and provider of which shall be selected by the Executive in the Executive’s sole discretion; and
(iii4) except as otherwise set forth in the last sentence of Section 6, to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or any Other Benefits (as defined in Section 6) in accordance with 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 terms 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")underlying plans or agreements.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Assurant Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEDeath, DEATH OR DISABILITYDisability, Good Reason or Other than For Cause. If, during the Employment PeriodPeriod and prior to the expiration of the Term of the Agreement, the Company shall terminate Executive’s employment is terminated by reason of the Executive's employment ’s death or Disability, by the Parent or the Company for any reason other than for Cause or Disability or by the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive (or Executive’s heirs, beneficiaries or representatives as applicable), at the times specified in a lump sum in cash within 30 days after the Date of Termination the aggregate of clause (vii), the following amounts:
A. the sum of (1A) an amount equal to the Executive's ’s Annual Base Salary through the Date of Termination for periods following his Separation From Service to the extent not theretofore paid and paid;
(2B) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. the an amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (x) the higher of (I) the highest Annual Bonus Amount for the preceding five (5) calendar years and (II) the Annual Bonus Amount that would be payable in respect of the then current fiscal year (and annualized for any fiscal year consisting of less than twelve (12) months) (such higher amount being referred to as the “Highest Annual Bonus”, provided that in no case will the Highest Annual Bonus be less than 50% of the Executive’s then current Annual Base Salary) and (y) a fraction, the numerator of which is the number of days in the then current fiscal year through the Date of Termination, and the denominator of which is three hundred sixty-five (365);
(C) an amount equal to three times the sum of (i) the higher of (1) three the Executive’s then current Annual Base Salary and (2) the Executive’s Annual Base Salary at any point during the last five (5) years ended prior to the Termination Date and (ii) the Highest Annual Bonus (for the avoidance of doubt, the Highest Annual Bonus will in no case be less than 50% of the Executive’s then current Annual Base Salary);
(D) an amount equal to three times the sum of (xi) the total of the employer basic and matching contributions credited to the Executive under the Company’s 401(k) Savings Plan (the “401(k) Plan”) during the twelve (12)-month period immediately preceding the month of the Executive's Annual Base Salary ’s Date of Termination, and (yii) the amount that would have been credited and contributed to the Executive and his accounts under all other deferred compensation plans using the amounts specified in clauses (i) and (ii) of Section 3(a)(i)(C), such total amount to be grossed up so that the amount the Executive actually receives after payment of any bonus federal or state taxes payable thereon equals the amount first described in Section 4(b)(ii) paid or payable in respect of the most recently completed fiscal year of the Companyabove; and, provided further, that such amount shall be reduced by
(E) the present total 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 all fringe benefits 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 on an annualized basis multiplied by three (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 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, 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 payable3), if any, under the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and.
(ii) for For a period of three (3) years from the remainder Executive’s Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or and 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)(iv3(b)(iv) of this the Employment Agreement if the Executive's ’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Date, terminated; provided, however, that with respect to any of such plans, programs, practices or policies requiring an employee contribution, the Executive (or Executive’s heirs or beneficiaries as applicable) shall continue to pay the monthly employee contribution for same, and provided further, that if the Executive becomes reemployed with re-employed by another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (eligibility. If any of the dental, accident, health insurance or other benefits specified in this Section 3(a)(ii) are taxable to the Executive and are not exempt from Section 409A, the following provisions shall apply to the reimbursement or provision of such continuation benefits. The Executive shall be eligible for reimbursement for covered welfare expenses, or for the provision of such benefits on an in-kind basis, during the period commencing on Executive’s Date of Termination and ending on the third anniversary of such date. The amount of such welfare benefit expenses eligible for reimbursement or the in-kind benefits provided under this Section 3(a)(ii), during the Executive’s taxable year will not affect the expenses eligible for reimbursement, or the benefits to be provided, in any other taxable year (with the exception of applicable period herein set forth lifetime maximums applicable to medical expenses or medical benefits described in Section 105(b) of the Code). The Executive’s right to reimbursement or direct provision of benefits under this Section 3(a)(ii) is not subject to liquidation or exchange for another benefit. To the extent that the benefits provided to the Executive pursuant to this Section 3(a)(ii) are taxable to the Executive and are not otherwise exempt from Section 409A, any reimbursement amounts to which the Executive would otherwise be entitled under this Section 3(a)(ii) during the first six months following the date of the Executive’s Separation From Service shall be hereinafter referred accumulated and paid to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, on the Executive date that is six months following the date of his Separation From Service. All reimbursements by the Company under this Section 3(a)(ii) shall be considered to have remained employed until paid no later than the end earlier of (i) the Employment Period time periods described above and to have retired on (ii) the last day of such period; andthe Executive’s taxable year following the taxable year in which the expense was incurred. The Company may, with the agreement of the Executive, provide any or all of the foregoing benefits to the Executive through a fully insured or pre-paid program or arrangement.
(iii) All benefits and amounts under the Company’s deferred compensation plan and all other benefit plans (except as specifically provided for in Section 4(b) below), not already vested shall become immediately one hundred percent (100%) vested as of the Date of Termination. All options to acquire common shares of the Parent, all restricted common shares of the Parent, and all share appreciation rights the value of which is determined by reference to or based upon the value of common shares of the Parent, held by the Executive under any plan of the Company or its affiliated companies shall become immediately vested, exercisable and nonforfeitable. The effect, if any, of a Change of Control on any other equity incentives and other awards the value of which is determined by reference to or based upon the value of common shares of the Parent shall be determined in accordance with the terms of the applicable award agreement.
(iv) To the extent not theretofore already 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 (collectively, the “Other Benefits”).
(v) If the Executive’s employment is terminated by reason of the Executive’s death, the Other Benefits (as defined in this Section) shall also include, without limitation, and the Executive’s estate and/or beneficiaries shall be entitled to receive, benefits at least equal to the most favorable benefits provided by the Company and its affiliated companies to the estates and beneficiaries of the officers of the Company and such affiliated companies under such plans, programs, practices and policies relating to death benefits, if any, in effect on the date hereof or, if more favorable, those in effect on the date of the Executive’s death.
(vi) If the Executive’s employment is terminated by reason of the Executive’s Disability, the Other Benefits (as defined in this Section) shall also include, without limitation, and applicable the Executive shall be entitled after the Disability Effective Date to receive, disability and other benefits at least equal to the most favorable benefits generally provided by the Company and its affiliated companies to other executives and the Executive’s disabled peer officers and/or their families during in accordance with such plans, programs, practices and policies relating to disability, if any, in effect generally on the 90-day date hereof or, if more favorable, those in effect at the time of the Disability.
(vii) The Company shall pay or provide to the Executive the amounts or benefits specified in Sections 3(a)(i)(A), 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and 3(a)(i)(E), 30 days following the date of the Executive’s Separation From Service if he is not a Specified Employee on the date of his Separation From Service or on the date that is six months following the date of his Separation From Service if he is a Specified Employee.
(viii) If the Executive is a Specified Employee, on the date that is six months following the Executive’s Separation From Service, the Company shall pay to the Executive, in addition to the amounts reflected in clause (x), an amount equal to the interest that would be earned on the amounts specified in Sections 3(a)(i)(A), 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and 3(a)(i)(E) for the period immediately preceding commencing on the Applicable Date date of the Executive’s Separation From Service until the date of payment of such amounts, calculated using an interest rate of five percent per annum (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"“Interest Amount”).
Appears in 1 contract
Samples: Employment Agreement (Weatherford International Ltd./Switzerland)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during the Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the Highest Annual Bonus and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) the Special Bonus, to the extent not theretofore paid, if not paid due to the Executive pursuant to Section 3(b)(iii), and (4) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) shall be hereinafter referred to as the "Accrued Obligations"); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three 2.99 and (2) the sum of (x) the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(ii) the Highest Annual Bonus; provided, however, that if the Special Bonus has not been paid or payable in respect to the Executive, such amount shall be increased by the amount of the most recently completed fiscal year of the CompanySpecial Bonus; 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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(v) 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 peer executives and their families during the 90-day period immediately preceding the Applicable DateEffective 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 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 (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 peer executives of the Company and its affiliated companies and their families during the 90-day period immediately preceding the Applicable Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(iv) to the extent not otherwise provided for herein, all options, warrants or other rights to acquire capital stock of the Company held by or for the benefit of Executive shall become fully vested and eligible for immediate exercise and all other rights of Executive to receive cash compensation whether deferred or not (including benefits under any Stock Appreciation Rights Plan or other similar plan) shall becoming fully vested and Executive shall become entitled to payment thereof by the Company in a lump sum in cash within 30 days after the Date of Termination.
Appears in 1 contract
Samples: Executive Supplemental Employment Agreement (Peach Auto Painting & Collision Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODTermination by Executive for Good Reason; OTHER THAN FOR CAUSE, DEATH OR DISABILITYTermination by the Company Other Than for Cause or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason, then in consideration of Executive's services rendered prior to such termination:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2) the product of (x) Executive's Target Bonus (as defined in Section 5(b) for the year in which the Date of Termination occurs and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, (3) any accrued vacation pay to the extent not theretofore paid, and (4) unless Executive has elected a different payout date in a prior deferral election, any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) 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 200% (or 299% in the product event the Date of Termination occurs within two years after the occurrence of a Change of Control) of the sum 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 effect as of the most recently completed fiscal year Date 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 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 DateTermination, 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 Target Bonus for the Retirement Plan and year in which the SERP Date of Termination occurs (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement AmountSeverance Payment"); and
(ii) for 18 months after the remainder Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue medical and health insurance benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv5(d) of this Agreement if the Executive's employment had not been terminated in accordance with (and Executive shall continue to be responsible for any cost thereof normally allocated to 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, employee); provided, however, that (A) post-termination insurance coverage provided pursuant to this provision shall offset any period of continuation coverage provided under COBRA applicable to such benefits, and (B) if the Executive becomes reemployed re-employed with another employer and is eligible to receive medical or other welfare and health insurance benefits under another employer provided plan, the medical and other welfare health insurance benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (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 periodeligibility; and
(iii) as shall be set forth in the instruments evidencing such awards, all stock options and other equity-based awards in the nature of rights that may be vested and/or exercised ("Equity Awards") that are held by Executive as of the Date of Termination will continue to vest and/or become exercisable over the 18-month period immediately following the Date of Termination; provided, however that if the Date of Termination occurs within two years after the occurrence of a Change of Control, then all of Executive's Equity Awards shall vest immediately as of the Date of Termination and shall remain exercisable over the 24-month period following the Date of Termination; and
(iv) 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 Company, including without limitation COBRA rights to other executives and their families during the 90-day period immediately preceding the Applicable Date extent not fully offset (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Executive for Good Reason; OTHER THAN FOR CAUSEor by the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the Average Annual Bonus and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid and in full satisfaction of the rights of the Executive thereto (the sum of the amounts described in clauses (1) ), (2), and (23) 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 (3) and (2) the sum of (x) the Executive's ’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 CompanyAverage Annual Bonus; and
C. a separate lump sum supplemental retirement benefit an amount equal to the difference between (1a) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to aggregate benefits under the Employees Retirement Plan for Pogo Producing Company (or any successor plan thereto) Company’s qualified pension and profit-sharing plans (the "“Retirement Plan"Plans”) during and any excess or supplemental pension and profit-sharing plans in which the 90-day period immediately preceding Executive participates (collectively, the Applicable Date) “Nonqualified Plans”), specifically including the Company SERP and Replacement SERP (whichever of the benefit payable under two plans applies in accordance with the Retirement Plan and any supplemental and/or excess retirement plan provisions of the Company and its affiliated companies providing benefits for the Executive (the "SERP"Section 4(b)(ix) hereof) which the Executive would have been entitled to receive if the Executive's ’s employment had 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 Separation Period, assuming for this purpose (to the extent relevant) that all accrued benefits are fully vested 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 benefit accrual formulas are no less advantageous employer contributions to the Executive than those Executive’s accounts in effect the Retirement Plans and the Nonqualified Plans during the 90-day period Separation Period would have been equal to the average of such contributions for the three years immediately preceding the Applicable Date of Termination or, if higher, the three years immediately preceding the Effective Date, and (2b) 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 ’s actual benefit 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 SERP (Nonqualified Plans on the amount Date of such benefit shall be hereinafter referred to as Termination and the "Supplemental Retirement Amount"date of the Change in Control); and;
(ii) for the remainder of the Employment Separation 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 ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during (in each case with such contributions by the 90-day period immediately preceding Executive as would have been required had the Applicable Date, 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 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 eligibility, and for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until during the end of the Employment Separation Period and to have retired on the last day of such period. The Separation Period shall not be subtracted from the period of months for which the Executive is eligible for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985;
(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
(iiiiv) 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 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"”).
(vi) all awards granted to the Executive prior to the Change in Control under the Company’s 2005 Stock Incentive Plan or any successor plan thereto (including, without limitation, the awards granted under Section 3(b)(iii) of the Current Agreement) will become immediately fully vested and any such awards constituting stock options will be immediately fully exercisable (for the lesser of three (3) years or the expiration of the option term in the case of the award granted under Section 3(b)(iii)(B) of the Current Agreement) in the event that the Executive’s termination (other than for Cause or Disability (as defined under the Company’s Long-term Disability Plan or Policy, as in effect on the Date of Termination of the Executive’s employment)) occurs within twenty-four (24) months of the Change in Control. If such termination occurs after twenty-four (24) months of the Change in Control, then the awards granted under Section 3(b)(iii) of the Current Agreement shall be subject to the provisions of Section 6(a)(iv)(C) of the Current Agreement to the extent that such provisions are more favorable to the Executive than may otherwise be provided hereunder or under any other plan, program or agreement applicable to such awards after the date awarded. 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. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during ------------------------------------------------------ the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason, then in consideration of Executive's services rendered prior to such termination and of Executive's covenants contained in Section 10 hereof:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred, for the most recently completed fiscal year during the Employment Period, if any (such amount being referred to as the "Most Recent Annual Bonus") and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereonthereon and subject to any prior election by the Executive to receive such deferred amounts in installments) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) ), (2), and (23) 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) two times the sum of (x1) 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 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, 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"); andMost Recent Annual Bonus;
(ii) for two years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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 accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, provided, however, that if the Executive becomes reemployed 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 (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until two years after the end Date of the Employment Period Termination and to have retired on the last day of such period; 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").
(iv) notwithstanding any provision of this Agreement to the contrary, the Executive shall forfeit his right to receive, or, to the extent such amounts have previously been paid to the Executive, shall repay in full to the Company within thirty (30) days of a final determination of the Executive's liability therefor as set forth below, the amount described in Section 6(a)(i)(B) of this Agreement if at any time during the period of two years after the Date of Termination he violates the Restrictive Covenants set forth in Section 10 hereof.
Appears in 1 contract
Samples: Change of Control Employment Agreement (Mapics Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODREASON; -------------------------------------------- ------------ OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the ----------------------------------------- Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the Recent Annual Bonus and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three (the "Multiplier") and (2ii) 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; andRecent Annual Bonus, provided furtherthat if the Executive is 62 years old or older on the Date of Termination, that such amount the Multiplier shall be reduced multiplied by a fraction, the present value numerator of which shall be the number of months (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 which shall not be deemed to be received by less than twelve) until the Executive upon termination Executive's 65th birthday, and the denominator of employment of the Executive under any severance plan, severance policy or severance arrangement of the Companywhich shall be 36; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for Termination, or if earlier, until the remainder Executive's 65th birthday (which shall be deemed to be no less than 12 months after the Date of the Employment PeriodTermination), assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect during each of the 90-day period immediately preceding the Applicable Datethree years is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 as of the Date of Termination;
(2) for three years after the amount Executive's Date of such benefit Termination, or if earlier, until the Executive's 65th birthday (which shall be hereinafter referred deemed to as be no less than 12 months after the "Supplemental Retirement Amount"Date of Termination); and
(ii) for the remainder of the Employment Period, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(ivSections 3(b)(4) of this Agreement and 3(b)(6) if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families during the 90-day period immediately preceding the Applicable Datefamilies; PROVIDED, providedHOWEVER, howeverthat, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare such benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion, PROVIDED that the cost of such outplacement shall not exceed 15% of the Executive's Annual Base Salary; and
(iii4) 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 Other Benefits (as defined 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"Section 6).
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. ------------------------------------------------------ If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause Cause, death or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any compensation previously bonus or portion thereof which has been earned but deferred by (and annualized for any fiscal year consisting of less than twelve 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 (together with any accrued interest or earnings thereonsuch higher amount being referred to as the "Highest Annual Bonus") and any accrued vacation pay(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, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product one half 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 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, 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")Highest Annual Bonus; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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
Samples: Change of Control Employment Agreement (Open Plan Systems Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability or Voluntary Termination prior to July 1, 2002. If, during the Employment Period, (i) the Company and its affiliated companies shall terminate the Executive's employment other than for Cause or Disability Disability, or (ii) the Executive shall voluntarily terminate employment either for Good Reason or without any reason during reason, other than Disability, after June 30, 2002, and after giving 30 days' prior written notice of such termination to the Window PeriodCompany:
(i) the The Company shall pay to the Executive in a lump sum in cash Executive, within 30 days after the Date of Termination Termination, a lump-sum cash payment of $2,142,756, together with interest on this amount accrued from January 1, 2001 through the aggregate date of payment at 120% of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred short-term Applicable Federal Rate for January, 2001, compounded semi-annually, as published by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum Internal Revenue Service for purposes 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)(41274(d) of the Internal Revenue Code of 1986, as amended (the "Code");
(ii) of any other amount of severance relating to salary or bonus continuation to be received by Should the Executive upon termination of employment move his residence in order to pursue other business opportunities within three years of the Date of Termination (or until his normal retirement date, whichever is sooner), the Company shall reimburse him for any expenses incurred in that relocation (including taxes payable on the reimbursement) which are not reimbursed by another employer; provided, however, that the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. a separate lump sum supplemental retirement benefit equal shall be entitled to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized such reimbursement with respect to only one such relocation, and the Employees Retirement Plan Executive shall be entitled to specify the relocation for Pogo Producing which reimbursement hereunder is to be made. Benefits under this provision will include the assistance, at no cost to the Executive, in selling his home and other assistance which was customarily provided to executives transferred within the 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 between the Company and its affiliated companies providing benefits for prior to the Executive Effective Date;
(the "SERP"iii) which the Executive would receive if For three years after the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date 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, 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"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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)(iv2(b)(iii) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(iv) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion; and
(iiiv) to To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other 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. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during ------------------------------------------------------ the Employment PeriodTerm, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the The Company shall pay to the Executive in a lump sum in cash within 30 five (5) days after the Termination Date of Termination the aggregate of the following amounts:
A. the The sum of of:
(1) the The Executive's Annual Base Salary through the Termination Date of Termination to the extent not theretofore paid and paid; and
(2) The product of (x) the higher of (I) the Recent Average Bonus and (II) the Annual Bonus paid or payable, including any compensation previously deferred by amount deferred, (and annualized for any fiscal year consisting of less than twelve (12) full months or for which the Executive has been employed for less than twelve (together with 12) full months) for the most recently completed fiscal year during the Employment Term, if any accrued interest or earnings thereon(such higher amount being referred to as the "Highest Annual Bonus.) and any accrued vacation pay(y) a fraction, the numerator of which is the number of days completed in each case to the extent not theretofore paid (current fiscal year through the Termination Date, and the denominator of which is 365. The sum of the amounts described in clauses Clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and;
B. the The amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three two and (2) the sum of (x) the Executive's Annual Base Salary (increased for this purpose by any Section 401(k) deferrals, cafeteria plan elections, or other deferrals that would have increased Executive's Annual Base Salary if paid in cash to Executive when earned) and (y) 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; andExecutive's Highest Annual Bonus;
C. a A separate lump lump-sum supplemental retirement benefit equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the most favorable to the Executive actuarial assumptions utilized and Company contribution history with respect to the Employees Retirement Plan for Pogo Producing Company applicable retirement plan, incentive plans, savings plans and other plans described in Section 4(c) (or any successor plan thereto) (the "Retirement PlanPlans") during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date) of the benefit payable under the Retirement Plan Plans 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 for an additional two (2) years after the Termination Date with annual compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for equal to the remainder sum of the Employment PeriodAnnual Base Salary and Highest Annual Bonus, assuming for this purpose that all accrued benefits and contributions are fully vested and that benefit accrual formulas and Company contributions are no less advantageous to the Executive than those in effect during the 90-day twelve (12) month period immediately preceding the Applicable Effective Date, and (2)
(i) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during Growth component of the 90-day period immediately preceding retirement program of the Applicable DateCompany, the Executive would receive two times eight percent (8%) (or sixteen percent (16%)) of the sum of the Executive's Annual Base Salary (determined in accordance with subsection C of Section 6(a)(i)) and the Executive's Highest Annual Bonus; and (ii) with respect to the Incentive Savings component of the retirement program of the Company, the Executive would receive two times the annual Company match of fifty percent (50%) of the Executive's actual benefit (paid or payable), if any, under maximum allowable contribution to the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to assuming Executive's compensation is as the "Supplemental Retirement Amount")set forth above; and
D. The amount equal to the product of (i) two and (ii) the sum of (x) the imputed income reflected on Executive's W-2 attributable to the car provided to Executive by the Company or its affiliates for the last calendar year ending before the Effective Date and (y) the club dues for Executive paid by the Company or its affiliates attributable to such year.
(ii) for For twenty-four (24) months after the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provideTermination Date, the Company shall continue to provide medical and dental benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 peer executives who are active employees and their families during the 90-day period immediately preceding the Applicable Date, as in effect from time to time thereafter; 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 eligibility, provided that the aggregate coverage of such benefits for the applicable period herein set forth shall be hereinafter referred combined benefit plans is no less favorable to as "Welfare Benefit Continuation")the Executive, in terms of amounts and deductibles and costs to him, than the coverage required hereunder. For purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policieshealth insurance, the Executive shall be considered to have remained employed until the end of the Employment Period such twenty-four (24) month period and to have retired on the last day of such period. If the Executive would qualify at the end of such twenty-four (24) month period for retiree health insurance under the Company's plan guidelines as in existence on the Effective Date, the Company shall provide to the Executive and his or her spouse, for life, retiree health insurance, subsidized to at least the same percentage extent as under the Company's plan as in existence on the Effective Date. Such retiree health insurance shall provide medical benefits to the Executive and/or the Executive's spouse in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies applicable generally to other peer executives who are active employees and their spouses as in effect from time to time thereafter; andprovided, however, that if the Executive -------- ------- and/or the Executive's spouse qualifies for coverage by Medicare or any successor program, the Company may require that the Executive and/or the Executive's spouse fully participate in Medicare and pay the premiums therefor personally.
(iii) The Executive shall have the right to purchase the car provided to him by the Company or its affiliates during the twelve (12) month period immediately preceding the Effective Date, if applicable, (or a comparable car acceptable to the Executive if such car is no longer owned by the Company or its affiliates), at the book value thereof on the Termination Date, exercisable within thirty (30) days after the Termination Date; and if the car is not purchased, Executive shall return the car to the Company.
(iv) For the twenty-four (24) month period after the Termination Date, the Company shall continue to provide group term life insurance (or comparable term coverage) in the same face amount and on substantially the same terms as in effect for the Executive just prior to the Effective Time. At the end of the twenty-four (24) month period, the Executive shall have any conversion rights as regards such coverage as are provided by law.
(v) 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"). Notwithstanding anything herein contained to the contrary, the payments and benefits provided in this Section 6(a) (other than the Accrued Obligations) shall not be paid or provided to the Executive unless and until he executes a Complete and Permanent Release (the "Release") in the form attached hereto, and the applicable period for rescission of the Release has expired. The parties agree that the Release may be expanded to include any company acquiring the Company and its affiliates as "Released Parties," as defined in the Release.
Appears in 1 contract
Samples: Change of Control Agreement (Marshall & Ilsley Corp/Wi/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability (and other than a termination due to death) or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) the Special Bonus, if due to the Executive pursuant to Section 4(b)(iii), to the extent not theretofore paid and (24) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) shall be hereinafter referred to as at 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 one and one-half (1.5) 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 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, 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")Highest Annual Bonus; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv4(b)(v) 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 peer executives and their families during the 90-day period immediately preceding the Applicable DateEffective 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 applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive for retiree retirement benefits pursuant to such plans, practices, 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
Samples: Management Continuity Agreement (Software Spectrum Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITYDuring the Window Period. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the ------------------------ Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Annual Bonus paid or payable, including any compensation previously bonus or portion thereof which has been earned but deferred by (and annualized for any fiscal year consisting of less than twelve 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 (together with any accrued interest or earnings thereonsuch higher amount being referred to as the "Highest Annual Bonus") and any accrued vacation pay(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, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
B. (ii) 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 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, 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")Highest Annual Bonus; and
(iiiii) for three years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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 accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until 3 years after the end Date of the Employment Period Termination and to have retired on the last day of such period; and
(iiiiv) 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
Samples: Change of Control Employment Agreement (Landamerica Financial Group Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEGood Reason, DEATH OR DISABILITY. If, during the Employment Period, Other Than for Cause or Disability: If the Company or SCW shall terminate the Executive's employment other than for Cause or Disability during the Effective Period, or the Executive shall terminate employment either for Good Reason or without any reason during the Window Effective Period, the Company and SCW agrees, subject to Section 8, to make the payments and provide the benefits described below:
(i) the The Company and/or SCW shall pay to the Executive in a cash lump sum in cash within 30 10 days after from the Date of Termination the aggregate date of the following amounts:Executive's termination of employment an amount equal to the product of (A) and (B), where (A) is 2.99 and (B) is the Executive's annual base salary at the highest of the rate in effect at any time during the three years preceding the date of termination.
A. (ii) The Company and/or SCW shall also pay to the Executive in a cash lump sum within 10 days from the date of termination an amount equal to the sum of (1A) the Executive's Annual Base Salary base salary through the Date date of Termination to the extent not theretofore paid and termination, plus (2B) any compensation previously deferred by the Executive (together with any accrued earnings or interest or earnings thereon), plus (C) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described referred to in clauses this paragraph (1ii) and (2) shall be are hereinafter referred to as the "Accrued Obligations"); and.
B. (iii) The Company and/or SCW shall also pay to the Executive in a cash lump sum within 10 days from the date of termination an amount equal to the excess of (such amount shall A) over (B), where (A) is equal to the single sum actuarial equivalent of what would be the Executive's accrued benefits under the terms of the Southern California Water Company Pension Plan (or any successor thereto), including any supplemental retirement plan providing additional pension benefits, (hereinafter together referred to as the "Severance AmountPension Plan") equal to at the product time 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 termination of employment, without regard to whether such benefits are "vested" thereunder, if the Executive were credited with an additional two years of continuous service after the termination of Executive's employment with the Company or payable in respect SCW at the Executive's highest annual rate of compensation covered by such Pension Plan within the three years preceding the date 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 with the compensation level provided for in Sections 4(b)(iCompany or SCW and (B) 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 is equal to the Executive than those in effect during the 90-day period immediately preceding the Applicable Date, and (2) the single sum actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Retirement Plan during the 90-day period immediately preceding the Applicable Date) of the Executive's actual benefit (paid or payable), if any, accrued benefits under the Retirement Pension Plan and at the SERP time of the Executive's termination of employment. The payment under this paragraph (iii) shall not extinguish any rights the amount Executive has to benefits under the Pension Plan. For purposes of such benefit this paragraph, "actuarial equivalent" shall be hereinafter determined using the actuarial assumptions used under the Pension Plan for determining the actuarial equivalence of different annuity forms of benefits. In no event shall the additional two years of continuous service referred to as above cause the "Supplemental Retirement Amount"); andExecutive to be deemed to be older than the Executive's actual age for any purpose under this Agreement.
(iiiv) for For two years after the remainder Executive's date of the Employment Periodtermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company and SCW shall continue to provide welfare benefits and fringe benefits and other perquisites to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 affiliates applicable generally to other peer executives and their families during the 90-day period immediately preceding the Applicable Date, date of the Executive's termination of employment); provided, however, that if the Executive becomes reemployed with employed by another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for any retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until two years after the end date of the Employment Period termination of employment and to have retired on the last day of such period; and. Following the period of continued benefits referred to in this subsection, the Executive and the Executive's family shall be given the right provided in Section 4980B of the Internal Revenue Code of 1986 (the "Code") to elect to continue benefits in all group medical plans. In the event that the Executive's participation in any of the plans, programs, practices or policies of the Company or SCW referred to in this subsection is barred by the terms of such plans, programs, practices or policies, the Company and/or SCW shall provide the Executive with benefits substantially similar to those which the Executive would be entitled as a participant in such plans, programs, practices or policies. At the end of the period of coverage, the Executive shall have the option to have assigned to the Executive, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy owned by the Company or SCW and relating specifically to the Executive.
(iiiv) The Company and/or SCW shall enable the Executive to purchase, at the end of the Effective Period, the automobile, if any, provided by the Company and/or SCW for the Executive's use at the time of the Executive's termination of employment at the wholesale value of such automobile at such time, as shown in the current addition of the National Auto Research Publication Blue Book. At the Executive's election, the Executive may retain any existing club memberships of the Executive purchased by the Company or SCW upon reimbursement to the Company or SCW, as the case may be, of any membership costs paid by the Company or SCW.
(vi) To the extent not theretofore paid or provided, the Company and/or SCW shall timely pay or provide to the Executive 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 policy, practice, 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 affiliates (such other amounts and benefits shall be being hereinafter referred to as the "Other Benefits")) in accordance with the terms of such plan, program, policy, practice, contract or agreement.
(vii) The Executive shall be entitled to interest on any payments not paid on a timely basis as provided in this Section 6(a) at the applicable Federal Rate provided for in Section 7872(f)(2)(A) of the Code.
Appears in 1 contract
Samples: Change in Control Agreement (Southern California Water Co)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, ------------------------------------------------------ during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability Disability, or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's his Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the higher of (I) the Targeted Annual Bonus and (2II) the Annual Bonus paid or payable, including any portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve full months or during which he was employed for less than twelve full months), for any completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive him (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) ), (2), and (23) shall be being 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 2.99 and (2) the sum of (x) the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(iithe Highest Annual Bonus.
(ii) paid or payable in respect of the most recently completed fiscal year of Executive shall immediately become fully 100% vested under the Company; and's qualified defined benefit retirement plan and benefits restoration plan (together, 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 excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") in which the Executive would receive participates, as if the Executive's his employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and his compensation in each of the three years is 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, required by Section 4(b)(i) 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 payableii), if any, under the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and;
(iiiii) for three years after the remainder Date of the Employment PeriodTermination, or such longer period as any plan, may be provided by the terms of the appropriate program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's his family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies Welfare Benefit Programs described in Section 4(b)(iv) of this Agreement if the Executive's his employment had not been terminated or, if more favorable to him, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives affiliates and their families during the 90-day period immediately preceding the Applicable Datefamilies, 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 provided for herein shall be secondary to those provided under such other plan during such applicable period of eligibility eligibility; and provided further that if the application of this sentence would result in material adverse tax consequences to the Company, the Company may, in lieu thereof, make cash payments to the Executive sufficient to allow him to obtain equivalent coverage for himself and his family (such continuation including to the extent necessary the election of such benefits for COBRA coverage and the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"maintenance of duplicate coverage during any pre-existing condition exclusion), and any additional cash payments necessary so that Executive will receive the full pre-tax benefit of the cash payments in lieu of coverage. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period; and;
(iiiiv) for a period ending on the earlier of one year from the Date of Termination or Executive's obtaining other full-time permanent employment, the Company shall, at its sole expense as incurred, provide the Executive with outplacement services that are reasonable in scope and cost in relation to his position;
(v) 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 he is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice Program 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 affiliates (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits");
(vi) notwithstanding any provision of any stock option agreement to the contrary, stock options theretofore granted to Executive shall become fully exercisable and may be exercised during a period equal to the lesser of (A) three years from the Date of Termination, or (B) ten years from the date of grant of the options;
(vii) the Company shall deliver to Executive the insurance policy referred to in Section 4b(iv) hereof with the premiums fully paid or it shall continue to make annual premium payment after termination until the premiums are fully paid (the "Life Insurance Benefit").
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment PeriodTerm, the Company shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive shall terminate the Executive’s employment either for Good Reason or without any reason during the Window Period:pursuant to Section 4(b)(i) then, subject to Section 5(c):
(i) the Company shall pay to the Executive in a lump sum in cash payment within 30 thirty (30) days after of the Termination Date of Termination the aggregate sum of the following amounts:
A. the sum of : (1A) the Executive's Annual ’s Base Salary then in effect through the Termination Date of Termination to the extent not theretofore paid, (B) any accrued vacation pay to the extent not theretofore paid and (2C) any compensation previously deferred by the Executive other amounts earned, accrued or owing but not yet paid or reimbursed under Section 3 (together with any accrued interest or earnings thereonother than Section 3(c)) and any accrued vacation pay, in each case to the extent not theretofore paid of this Agreement (the sum of the amounts described in clauses (1) and (2this Section 5(a)(i) 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 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, 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"); and;
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits pay to the Executive and/or in a lump sum cash payment within thirty (30) days of the Executive's family at least Termination Date an amount 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 90then current Base Salary for a six-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 month period; and
(iii) if the Executive elects to receive continuation of health plan benefits to the extent not theretofore paid authorized by and consistent with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) after the Termination Date, a continuation at the Company’s expense of such continuation coverage on behalf of the Executive for six (6) months following the Termination Date.
(b) If the Executive’s employment is terminated (i) by the Company for Cause or providedDisability, (ii) by the Executive pursuant to Section 4(b)(ii)), or (iii) by reason of Executive’s death, the Company shall timely have no obligation under this Agreement to pay or provide any amount to the Executive, other than payment of the Accrued Obligations. The Accrued Obligations shall be paid to the Executive and/or 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 family ’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 a seven-day revocation period if required by applicable law (the “Revocation Period”). Notwithstanding the above, if any other amounts or benefits required to severance payments would otherwise be paid or 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 (provided or which the Executive and/or that no revocation right has been exercised by 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
Samples: Employment Agreement (Eloqua, Inc.)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSETermination for Good Reason or Other Than for Cause, DEATH OR DISABILITYDeath or Disability Prior to a Change of Control or after Twelve Months after a Change of Control. If, during the Employment PeriodTerm and prior to a Change of Control or after twelve (12) months after a Change of Control, the Company shall terminate the Executive's employment other than for Cause Cause, Death or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination Termination, (2) the product of (x) the Annual Bonus paid or payable to the extent not theretofore paid Executive for the immediately preceding year and (2y) 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, (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and (4) any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) 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 (x1) the Executive's Annual Base Salary Salary, calculated from the Date of Termination through the remainder of the Term, and (y2) any bonus described in Section 4(b)(ii) the Annual Bonus paid or payable in respect to the Executive for the immediately preceding fiscal year annualized and calculated from the Date of Termination through the remainder of the most recently completed fiscal year of the CompanyTerm; andprovided, provided furtherhowever, 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 continuation, if any, 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 (ii) any or all Stock Options awarded to the difference between Executive under any plan not previously exercisable and vested shall become fully exercisable and vested; and
(1iii) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized thereafter 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 other peer executives 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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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, 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 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 (eligibility; in the event that the Executive's participation in any such continuation of such benefits for plan or program is barred, the applicable period herein set forth Company shall be hereinafter referred arrange to as "Welfare Benefit Continuation"). For purposes of determining eligibility of provide the Executive for retiree with benefits pursuant substantially similar to those which he is entitled to receive under such plans, practices, programs plans 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 periodprograms; and
(iiiiv) subject to the provisions of Section 6, 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 of or contract or agreement of with the Company and its affiliated companies as in effect and applicable generally thereafter with respect to other peer executives of the Company and its affiliated companies 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"); and
(v) in addition to the benefits to which the Executive is entitled under any retirement plans or programs in which the Executive participates or any successor plans or programs in effect on the Date of Termination, the Company shall pay the Executive in one sum in cash at the Executive's normal retirement age (or earlier retirement age should the Executive so elect) as defined in the retirement plans or programs in which the Executive participates or any successor plans or programs in effect on the Date of Termination, an amount equal to the actuarial equivalent of the retirement pension to which the Executive would have been entitled under the terms of such retirement plans or programs without regard to "vesting" thereunder, had the Executive accumulated additional years of continuous service through the remainder of the Term at his Annual Base Salary in effect on the Date of Termination under such retirement plans or programs reduced by the single sum actuarial equivalent of any amounts to which the Executive is entitled pursuant to the provisions of said retirement plans and programs; for purposes of this paragraph, "actuarial equivalent" shall be determined using the same methods and assumptions utilized under the Company's retirement plans and programs on the Effective Date; and
(vi) the Company shall promptly transfer and assign to the Executive all such life insurance policies for which the Company or Parent was previously reimbursing premium payments made by the Executive pursuant to an agreement between the Executive and the Company or Parent; and
(vii) for a period of six (6) months after the Date of Termination, the Company shall promptly reimburse the Executive for reasonable expenses incurred for outplacement services and/or counseling.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood ------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment ------------------------------------------------- Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the The Company shall pay to the Executive Executive, in a lump sum in cash within 30 10 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the Annual Target Bonus times a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (2iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three and (2) times 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; andAnnual Target Bonus, provided further, that such amount shall be reduced by any lump sum severance amount payable to the present value (determined as provided in Section 280G(d)(4) Executive pursuant to the General Retirement Plan for Employees of the Internal Revenue Code of 1986, as amended Xxxxxxxxx Technology Corporation or any successor thereto (the "CodeGRP")) 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 (1C) 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 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, 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 Executiveecutive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination.
(ii2) for For three years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement or 3(b)(6) (including, without limitation, tax and financial planning services to the extent the Executive was entitled to such services under Section 3(b)(6)) if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives the Affiliated Companies and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs medical and policieslife insurance benefits, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period; and.
(iii3) to To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which that 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 Affiliated Companies (such other amounts and benefits shall be hereinafter referred to as benefits, the "Other Benefits").
(4) The Company shall at its sole expense provide the Executive with reasonable outplacement services, at a cost not to exceed $20,000, during the one-year period following the Executive's Date of Termination. The Executive shall not, however, be entitled to any payment in lieu of accepting outplacement assistance services.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODREASON; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the higher of (I) the Recent Annual Bonus and (2II) 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 (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three and (2ii) 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 CompanyHighest Annual Bonus; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect during each of the 90-day period immediately preceding the Applicable Datethree years is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii2) for three years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its the affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Datefamilies, providedPROVIDED, howeverHOWEVER, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion; and
(iii4) 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 that 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 the 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 benefits, the "Other Benefits").
Appears in 1 contract
Samples: Change of Control Employment Agreement (Investors Financial Services Corp)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEBy the Company other than for Cause, DEATH OR DISABILITYDeath or Disability, or by the Executive for Good Reason. If, during the Employment Period, either (1) the Company shall terminate terminates the Executive's employment employment, other than for Cause Cause, death, or Disability Disability, or (2) the Executive shall terminate terminates her employment either for Good Reason or without any reason during the Window Period:Reason,
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination (or such later date which is no more than 7 days after the aggregate expiration of the revocation period for the release set forth in Section 5(d) below), the sum of the following amounts:
A. the sum : (i) any portion of (1) the Executive's Annual Base Salary through the Date of Termination that has been earned but not yet paid; and (ii) an amount representing the annual incentive target (which for this purpose shall be 100% of the Annual Base Salary) for the period that includes the Date of Termination, multiplied by a fraction, the numerator of which is the number of days in such period through the Date of Termination, and the denominator of which is the total number of days in the relevant period;
(ii) the Company shall make a lump sum payment to the Executive within 30 days after the Date of Termination (or such later date which is no more than 7 days after the expiration of the revocation period for the release set forth in Section 5(d) below) equal to $4,500,000;
(iii) the Company shall provide the Executive with benefits under the Company's employee health and dental benefit plans, as if she had remained employed by the Company pursuant to this Agreement through the end of the Employment Period (or, if later, the date that is the second anniversary of the Date of Termination); provided, that to the extent any benefits under the Company's health and dental benefit plans cannot theretofore be provided pursuant to a plan or program maintained by the Company for its employees, the Company shall provide the substantially equivalent value of such benefits outside such plan or program at no additional cost (including, but not by way of limitation, tax cost) to the Executive; and provided, further, that during any period when the Executive is eligible to receive at least equivalent health and dental benefits under another employer-provided plan, the health and dental benefits provided by the Company under this Section 5(a)(ii) shall cease;
(iv) (A) any non-performance-based equity or other non-performance-based grant, including, without limitation, options, made prior to the Effective Date under a Company long-term incentive plan that is outstanding on the Date of Termination shall, immediately prior to the effectiveness of termination of the Executive's employment, be fully vested and any restrictions shall lapse; (B) any non-performance-based equity or other non-performance-based grant, including, without limitation, options, made on or after the Effective Date under a Company long-term incentive plan that is outstanding on the Date of Termination shall, immediately prior to the effectiveness of termination of the Executive's employment, vest and any restrictions shall lapse with respect to the number of shares or units outstanding multiplied by a fraction, the numerator of which is the number of days in the service or other restriction period through the Date of Termination and the denominator of which is the total number of days in the service or other restriction period; (C) any performance-based equity or other grant made prior to the Effective Date under a Company long-term incentive plan that is outstanding on the Date of Termination that is earned by the Executive based on the Company's results achieved during the applicable performance periods as determined by the Compensation Committee of the Board shall be paid out to the Executive in full when such performance period awards are payable to other Company long-term incentive plan participants; (D) any performance-based equity or other grant made on or after the Effective Date under a Company long-term incentive plan that is outstanding on the Date of Termination that is earned by the Executive based on the Company's results achieved during the applicable performance periods as determined by the Compensation Committee of the Board shall be paid out to the Executive when such performance period awards are payable to other Company long-term incentive plan participants, with respect to the number of shares or units awarded multiplied 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 total number of days in the performance period; and (2E) any vested options outstanding on the Date of Termination and unvested options outstanding on the Date of Termination that vest in accordance with this Section 5(a)(iv) shall be 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; and
(v) For a 60-day period commencing on the Date of Termination, the Executive is entitled to receive outplacement services from one or more organizations that are offered by the Company from time to time, with such services capped at a Company cost of $50,000. Certain of 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, except as otherwise expressly provided for in Section 6 below, shall be the sole and exclusive remedy therefor. As a condition to receipt of such payments and benefits, the Executive must sign and not subsequently revoke a general release in favor of the Company and its affiliates, as set forth in Section 5(e) below. Upon compliance with the provisions of this Section 5(a), the Company shall have no further obligations under this Agreement, except as specified in Section 6 or 7 below. Any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent that has not theretofore been paid (the sum as of the amounts described in clauses (1) and (2) shall Date of Termination, will 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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices terms 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 conditions 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 arrangement pursuant to which 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")were deferred.
Appears in 1 contract
Samples: Employment Agreement (Constellation Energy Group Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Company other than for Cause, Death or Disability; OTHER THAN FOR CAUSE, DEATH OR DISABILITYby the Executive for Good Reason. If, during the Employment Period, the Company terminates the Executive's employment, other than for Cause, Death, or Disability, or the Executive terminates employment for Good Reason, the Company shall terminate 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 and will be entitled to receive all retiree welfare benefits and other benefits provided to retired senior executives, as set forth in Section 3(c), with such benefits being calculated for this purpose as though the Executive had retired at age 62 with earnings on an annual basis during the years between the Date of Termination and age 62 equal to the Executive's earnings for the year immediately preceding the Date of Termination); provided, that the Incentive Compensation for the period through the end of the Employment 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; and provided, further that to the extent any 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; 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)(iv) 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 or performance shares or units 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 Cause or Disability or for the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (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 actions of the Company and its affiliated companies providing benefits for the Executive (the "SERP") which the Executive would receive if leading to a termination of 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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 by the Executive for retiree benefits pursuant to such plansGood Reason, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period sole 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")exclusive remedy therefor.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during a Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the a Window Period:
(i) the Company shall pay or provide to or in respect of the Executive the aggregate of the following amounts and benefits:
A. 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 Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the highest annual bonus paid or accrued for the benefit of Executive during the three year period preceding the Date of Termination and (2y) a fraction, the numerator of which is the number of days since the date of the last bonus payment through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred or earned by the Executive (together with any accrued interest or earnings thereon) ), any unreimbursed expenses and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2) and (23) shall be hereinafter referred to as the "Accrued ObligationsObligation"); and
B. in a lump sum in cash within 30 days after the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to Date of Termination the product of (1) three and (2) multiplying the factor of 3.75 times the sum of (x) the Executive's highest Annual Base Salary and (y) any the highest annual bonus described in Section 4(b)(ii) paid or which has been 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 within the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. past three years (including such salary and bonus paid by 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 previous employer which is a direct subsidiary of the Company and its affiliated companies providing benefits for as of 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) date of this Agreement 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, 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 Executiveone year'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"); andservice.
(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)(iv2(b)(iii) 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 on the 90-day period immediately preceding Effective Date or, if more favorable to the Applicable DateExecutive, provided, however, that if as in effect generally at any time thereafter with respect to other executives of the Executive becomes reemployed with another employer Company and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical its affiliated companies and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility their families (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 policiespolicies and for purposes of determining Vesting Service (as defined in the Reading & Bates Pension Plan) under the Reading & Bates Pension Plan and xxx Reading & Bates Benefits Rexxxxxment Plan, the Executive shall be considered xxxxidered 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. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. A. If, during the Employment Period, the Executive’s employment is terminated in accordance with Section 4(A)(i) or 4(A)(ii), the Company shall terminate pay or provide to or in respect of the Executive's employment other than for Cause or Disability or , on the Executive tenth Business Day next following the Date of Termination, all of the following amounts and benefits set forth in this Section 5(A); provided, however, that any amounts to be paid pursuant to Section 5(A)(iii) shall terminate employment either for Good Reason or without any reason during the Window Period:be paid in accordance with Section 3(B).
(i) the Company Executive shall pay to the Executive in receive a lump sum cash payment in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. an amount equal to the sum of (1a) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2b) any compensation previously deferred by for all of the Executive (together with any accrued interest or earnings thereon) and any Executive’s accrued vacation paytime based upon the Executive’s current Annual Base Salary (notwithstanding any limitation on payment for accrued vacation then set forth in the Company’s policies or practices), in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1a) and (2b) shall be hereinafter referred to as the "“Accrued Obligations"Obligation”); and.
B. (ii) Executive shall receive a lump sum cash payment equal to the amount he would have received if (such 1) his employment had not been terminated and (2) his Annual Base Salary as of the Date of Termination had remained in effect and 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 latest possible date of termination of the Employment Period in accordance with the definition of Employment Period (the “Final Expiration Date”).
(iii) Executive shall receive a lump sum cash payment in an amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1y) three the Annual Bonus he would have received for the Performance Period during which the Date of Termination occurs if his employment had not been terminated and (2z) a fraction, the numerator of which shall be the number of Business Days from the beginning of such Performance Period to the Date of Termination, inclusive, and the denominator of which shall be 260.
(iv) Executive shall receive a lump sum cash payment in an amount equal to the Annual Bonus that would have been paid to the Executive pursuant to this Agreement for the period commencing on the January 1 next following the Date of Termination and ending on the Final Expiration Date, assuming for such purpose that the Annual Bonus payable for each applicable period described in this Section 5(A)(iv) would equal the highest amount paid pursuant to Section 3(B) in respect of the most recent three applicable Performance Periods prior to the Date of Termination.
(v) Effective as of the Date of Termination, the Company shall provide for (a) the sum immediate vesting and exercisability of, and termination of any restrictions on sale or transfer (other than any such restriction arising by operation of law) with respect to, each and every stock option, restricted stock award, restricted stock unit award and other equity-based award and performance award (each, a “Compensatory Award”) that is outstanding as of a time immediately prior to the Date of Termination, (b) the extension of the term during which each and every Compensatory Award may be exercised by the Executive until the earlier of (x) the first anniversary of the Date of Termination or (y) the date upon which the right to exercise any Compensatory Award would have expired if the Executive had continued to be employed by the Company under the terms of this Agreement until the Final Expiration Date, and (c) at the sole election of the Executive's Annual Base Salary , in exchange for any or all Compensatory Awards that were vested as of December 31, 2004, and are either denominated in or payable in Common Stock, 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.
(vi) The Executive shall continue to receive medical, dental and life insurance coverage until he receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-by-coverage or benefit-by-benefit basis) or the later of (1) the death of the Executive, (2) the death of the Executive’s spouse and (3) the youngest child of the Executive reaching age 21; provided that (x) if the Executive is precluded from continuing his participation in any benefit plan or program as provided in clause (v), he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in clause (v) and (y) the economic equivalent of 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 benefit foregone 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 deemed to be received the lowest cost that would be incurred by the Executive upon termination in obtaining such benefit himself on an individual basis. Notwithstanding the foregoing, to the extent that any compensation or benefits payable under this Section 5(A)(5) are not attributable to the continuation of employment group health insurance pursuant to the requirements of Section 4980B of the Executive under any severance plan, severance policy Code or severance arrangement Part VI of Title I of the Company; and
C. a separate lump sum supplemental retirement benefit equal to Employee Retirement Income Security Act of 1974, as amended, then any such payments shall be made no later than 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) close of the benefit payable under Executive’s taxable year next following 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") taxable year in 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 remainder of related expenses are incurred.
B. If, during 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, 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’s employment is terminated in accordance with Section 4(A)(iii), if any, under the Retirement Plan and the SERP (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue have no further obligations under this Section 5, other than for (i) the payment of Accrued Obligations and (ii) unless the termination in accordance with Section 4(A)(iii) is for Cause, receipt of the benefits and payments specified in Section 5(A)(vi). In such case, all Accrued Obligations shall be paid to the Executive and/or in a lump sum in cash on the Executive's family at least equal to those which would have been provided to them in accordance with tenth Business Day next following the plans, programs, practices Date of Termination and policies described the benefits and payments specified in Section 4(b)(iv5(A)(vi) of this Agreement if the Executive's employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies 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 as set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility of the Executive for retiree benefits pursuant to in 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")Section.
Appears in 1 contract
Samples: Employment Agreement (Dril-Quip Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood Reason or during the Window Period; OTHER THAN FOR CAUSEOther than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the Highest Annual Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) the Special Bonus, if due to the Executive pursuant to Section 3(b)(iii), to the extent not theretofore paid and (24) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3) and (24) shall be hereinafter referred to as the "Accrued Obligations"); and
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three 2.99 and (2) the sum of (x) the Executive's Annual Base Salary and (y) any bonus described in Section 4(b)(ii) the Highest Annual Bonus; provided, however, that if the Special Bonus has not been paid or payable in respect to the Executive, such amount shall be increased by the amount of the most recently completed fiscal year of the CompanySpecial Bonus; 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. (C) a separate lump lump-sum supplemental retirement benefit (the amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount") equal to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized with respect to the Employees Company's Retirement Plan for Pogo Producing Company (or any successor plan thereto) (the "Retirement Plan") during the 90-day period immediately preceding the Applicable 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 employment continued at the compensation level provided for in Sections 4(b)(i3(b)(i) and 4(b)(ii3(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 Effective 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 Effective 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")SERP; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(v) 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 peer executives and their families during the 90-day period immediately preceding the Applicable DateEffective 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 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 (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 peer executives of the Company and its affiliated companies and their families during the 90-day period immediately preceding the Applicable Effective Date or, if more favorable to the Executive, as in effect generally thereafter with respect to other peer executives of the Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(iv) to the extent not otherwise provided for herein, all options, warrants or other rights to acquire capital stock of the Company held by or for the benefit of the Executive shall become fully vested and eligible for immediate exercise and all other rights of the Executive to receive cash compensation whether deferred or not (including benefits under any Stock Appreciation Rights Plan or other similar plan) shall becoming fully vested and the Executive shall become entitled to payment thereof by the Company in a lump sum in cash within 30 days after the Date of Termination.
Appears in 1 contract
Samples: Executive Supplemental Employment Agreement (Highwoods Realty LTD Partnership)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability or Voluntary Termination prior to July 1, 2002. If, during the Employment Period, (i) the Company and its affiliated companies shall terminate the Executive's employment other than for Cause or Disability Disability, or (ii) the Executive shall voluntarily terminate employment either for Good Reason or without any reason during reason, other than Disability, after June 30, 2002, and after giving 30 days' prior written notice of such termination to the Window PeriodCompany:
(i) the The Company shall pay to the Executive in a lump sum in cash Executive, within 30 days after the Date of Termination Termination, a lump-sum cash payment of $4,877,593, together with interest on this amount accrued from January 1, 2001 through the aggregate date of payment at 120% of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred short-term Applicable Federal Rate for January, 2001, compounded semi-annually, as published by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum Internal Revenue Service for purposes 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)(41274(d) of the Internal Revenue Code of 1986, as amended (the "Code");
(ii) of any other amount of severance relating to salary or bonus continuation to be received by Should the Executive upon termination of employment move his residence in order to pursue other business opportunities within three years of the Date of Termination (or until his normal retirement date, whichever is sooner), the Company shall reimburse him for any expenses incurred in that relocation (including taxes payable on the reimbursement) which are not reimbursed by another employer; provided, however, that the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. a separate lump sum supplemental retirement benefit equal shall be entitled to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized such reimbursement with respect to only one such relocation, and the Employees Retirement Plan Executive shall be entitled to specify the relocation for Pogo Producing which reimbursement hereunder is to be made. Benefits under this provision will include the assistance, at no cost to the Executive, in selling his home and other assistance which was customarily provided to executives transferred within the 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 between the Company and its affiliated companies providing benefits for prior to the Executive Effective Date;
(the "SERP"iii) which the Executive would receive if For three years after the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date 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, 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"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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)(iv2(b)(iii) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(iv) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion; and
(iiiv) to To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other 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. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITYUnder Section 4. If, during If the Employment Period, the Company shall terminate the ExecutiveOfficer's employment shall have been terminated under Section 4(a) (other than for Cause Cause) or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:4(b):
(i) the Company shall pay to the Executive in make a lump sum in cash payment to the Officer within 30 days after the Date of Termination the aggregate of the following amounts:
A. in an amount equal to the sum of (1) the ExecutiveOfficer's pro rata Annual Base Salary payable through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation paypaid, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"); and
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 targeted amount of the Officer's annual bonus and long-term incentive awards that would have been payable with respect to the fiscal year in which the Date of Termination occurs in each case absent the termination of the Officer's employment prorated for the portion of such fiscal year through the Date of Termination taking into account the number of complete months during such fiscal year through the Date of Termination and (3) the Officer's actual earned annual or long-term incentive awards for any completed fiscal year or period not theretofore paid or deferred;
(ii) the Company shall pay to the Officer in equal installments, made at least monthly, over the twenty-four months following the Date of Termination an aggregate amount equal to (1) two times the Officer's Annual Base Salary in effect on the Date of Termination, (2) two times the targeted amount of the annual incentive bonus that would have been paid to the Officer with respect to the Company's fiscal year in which such Date of Termination occurs and (3) two times the targeted amount of the long-term incentive award that would have been paid to the Officer with respect to such fiscal year;
(iii) the Company shall continue to provide, in the manner and timing provided for in the Plans (other than stock options and except as set forth in this Section 4(d) and in Section 7(b)), the benefits provided under the Plans that the Officer would receive on an after-tax basis if the Officer's employment had continued for two years after the Date of Termination assuming for this purpose that the Officer's compensation for each such year would have been one-half of the amount payable pursuant to clause (ii) above, and the Officer shall be fully vested in any account balance and all other benefits continuation under such Plans; provided, however that the benefits provided under this clause (iii) shall be limited to the coverage permitted by law or as would otherwise not potentially adversely impact on the tax qualification of any Plans; provided, further, that if such benefits may not be continued under the Plans, the Company shall pay to the Officer an amount equal to the Company's cost had such benefits been continued.
(1) all unvested options held by the Officer shall continue to vest in accordance with their terms for two years after the Date of Termination, and all remaining unvested options held by the Officer shall vest on the two year anniversary date of the Date of Termination, (2) all unvested profit shares held by the Officer or for the benefit of the Officer by a grantor trust established by the Company shall continue to vest in accordance with their terms for two years after the Date of Termination and all remaining profit shares shall vest on the two year anniversary date of the Date of Termination, provided that, if permitted by the terms of any such trust, any unvested profit shares shall continue to be held by such grantor trust until such profit shares vest pursuant to this clause (iv) and any such unvested profit shares not permitted to be so held shall vest immediately and be delivered to the Officer, (3) any other unvested equity based award (including, without limitation, restricted stock and stock units) held by the Officer shall vest on the two year anniversary date of the Date of Termination on a pro rata basis determined by a fraction, the numerator of which is the number of months elapsed from the grant of such equity award through the Date of Termination plus the twenty-four months after the Date of Termination and the denominator of which is the total number of months in the vesting period for such award and shall be promptly delivered to the Officer entirely in the form of Common Stock, (4) any options held by the Officer that are vested on the Date of Termination or vest thereafter pursuant to this clause (iv) may be exercised until the earlier of (x) the Executive's Annual Base Salary thirty month anniversary date of the Date of Termination and (y) the expiration date of such options and (5) the Officer shall not be entitled to 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")) additional grants of any stock options, restricted stock, other amount of severance relating to salary equity based 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 90long-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 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, 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")term awards; and
(iiv) for the remainder Officer will be entitled to continuation of health benefits under the Employment PeriodPlans at a level commensurate with the Officer's position or more senior position(s) to which the Officer may be appointed, or and if the Officer elects to receive such longer period as any plan, program, practice or policy may providehealth benefits, the Company shall continue pay the medical premiums therefore for the first twenty-four months after the Date of Termination, and thereafter the Officer shall pay the premium charged to former employees of the Company pursuant to Section 4980B of the Code until the Officer is sixty-five years of age; provided, that the Company can amend or otherwise alter the Plans to provide benefits to the Executive and/or the Executive's family at least equal to Officer that are no less than those which would have been provided to them in accordance commensurate with the plans, programs, practices and policies described in Section 4(b)(ivOfficer's current position or more senior position(s) of this Agreement if to which 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, Officer may be appointed; 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 such benefits cannot theretofore paid be provided to the Officer under the terms of the Plans or providedthe Plans cannot be so amended in any manner not adverse to the Company, the Company shall timely pay or provide the Officer, on an after-tax basis, an amount necessary for the Officer to acquire such benefits from an independent insurance carrier; and provided, further, that 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 obligations 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 under this clause (such other amounts and benefits v) shall be hereinafter referred terminated if, at any time after the Date of Termination, the Officer is employed by or is otherwise affiliated with a party that offers comparable health benefits to as the "Other Benefits")Officer.
Appears in 1 contract
Samples: Retention Agreement (Toys R Us Inc)
Obligations of the Company Upon Termination. The Company shall have the following obligations to Executive upon a termination of Executive's employment following a CIC:
(a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEIf the termination is for death, DEATH OR DISABILITY. Ifdisability or incapacity, during the Employment Periodthen for purposes of this CIC Agreement, the Company shall pay to Executive or his estate, in a lump sum not more than 30 days after the Date of Termination, the sums due under Section 3(c) hereof, as if Executive had notified the Company of his election to terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment either Agreement for Good Reason and not the sums due under Section 5 of the Employment Agreement.
(b) If the termination is for Cause, then the rights and obligations of the parties shall be governed by the provisions of Section 7 of the Employment Agreement.
(c) If the termination is by the Company without Cause or without any reason during the Window Periodby Executive for Good Reason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher of (i) the annual Bonus most recently paid to Executive pursuant to Section 3(c) of the Employment Agreement and (2ii) the Bonus paid or payable pursuant to such Section 3(c), 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 Executive was employed for less than twelve full months), for the most recently completed fiscal year during the Employment Period, if any (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) ), (2), and (23) 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 (1a) three (3) and (2b) the sum of (x) the Executive's Annual 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 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, 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"); andHighest Annual Bonus.
(ii) for the remainder three (3) years after Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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)(iv3(f) of this the Employment Agreement if the Executive's employment had not been terminated or, if more favorable to Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, provided, however, that if the Executive becomes reemployed re-employed with another employer and is eligible to receive medical or other welfare benefits under another employer employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility eligibility. Notwithstanding the foregoing, the Company shall continue to make all scheduled premium payments under any split-dollar life insurance policy in effect on the Date of Termination on behalf of Executive for so long as such payments are scheduled (such continuation of such benefits for the applicable period herein set forth shall be hereinafter referred without giving effect to as "Welfare Benefit Continuation"Executive's termination). For purposes of determining eligibility (but not the time of the commencement of benefits) of Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(iii) the Company shall, at its sole expense as incurred, provide Executive with out placement services the scope and provider of which shall be selected by Executive in his sole discretion; and
(iiiiv) 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. (a) GOOD REASON OR DURING THE WINDOW PERIODGood -------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during -------------------------------------------------- the Employment Period, (I) the Company or Bank shall terminate the Executive's employment other than for Cause Cause, Death or Disability or (II) the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the The Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by "Accrued Salary"), provided that if the employment of the Executive is terminated without Cause or for Good Reason before the fourteenth (together with any accrued interest or earnings thereon14th) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum month anniversary date of the amounts described Effective Date, the Date of Termination shall be deemed to be said fourteenth (14th) month anniversary date and the Accrued Bonus (as defined in clauses (1) and (2paragraph 5(b)) shall be hereinafter referred added to as and be deemed a part of the "Accrued Obligations")Annual Base Salary; and
B. $1.2 million, payable in 24 equal monthly installments (the "Termination Payment") (which is approximately the amount (such amount shall that would be hereinafter referred to as the "Severance Amount") equal owed to the product Executive as a termination payment under the existing employment arrangements with Maxx Xxxxx).
(ii) For the greater of (1) three and twelve months or (2) the sum number of (x) the Executive's Annual Base Salary and (y) any bonus described months remaining 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 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 Period on 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) 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"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may provide(the "Benefit Continuation Period"), the Company shall after the Executive's Date of Termination 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)(iv3(b)(iv) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until during the end of the Employment Benefit Continuation Period and to have retired on an the last day of such period; and;
(iii) to To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other 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
Samples: Employment Agreement (Mercantile Bancorporation Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Executive for Good Reason; OTHER THAN FOR CAUSEor by the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (2) the product of (x) the Average Annual Bonus and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid and in full satisfaction of the rights of the Executive thereto (the sum of the amounts described in clauses (1) ), (2), and (23) 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 3 and (2) the sum of (x) the Executive's ’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 CompanyAverage Annual Bonus; and
C. a separate lump sum supplemental retirement benefit an amount equal to the difference between (1a) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to aggregate benefits under the Employees Retirement Plan for Pogo Producing Company (or any successor plan thereto) Company’s qualified pension and profit-sharing plans (the "“Retirement Plan"Plans”) during the 90-day period immediately preceding the Applicable Date) of the benefit payable under the Retirement Plan and any excess or supplemental and/or excess retirement plan of the Company pension and its affiliated companies providing benefits for profit-sharing plans in which the Executive participates (collectively, the "SERP"“Nonqualified Plans”) which the Executive would have been entitled to receive if the Executive's ’s employment had 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 Separation Period, assuming for this purpose (to the extent relevant) that all accrued benefits are fully vested 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 benefit accrual formulas are no less advantageous employer contributions to the Executive than those Executive’s accounts in effect the Retirement Plans and the Nonqualified Plans during the 90-day period Separation Period would have been equal to the average of such contributions for the three years immediately preceding the Applicable Date of Termination or, if higher, the three years immediately preceding the Effective Date, and (2b) 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 ’s actual benefit 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 SERP (Nonqualified Plans on the amount Date of such benefit shall be hereinafter referred to as Termination and the "Supplemental Retirement Amount"date of the Change in Control); and;
(ii) for the remainder of the Employment Separation 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 ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its affiliated companies as in effect and applicable generally to other executives and their families during (in each case with such contributions by the 90-day period immediately preceding Executive as would have been required had the Applicable Date, 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 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 eligibility, and for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until during the end of the Employment Separation Period and to have retired on the last day of such period. The Separation Period shall not be subtracted from the period of months for which the Executive is eligible for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985.;
(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
(iiiiv) 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 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"”).
(vi) any awards granted to the Executive prior to the Change in Control under the Company’s 2005 Stock Incentive Plan or any successor plan thereto will become immediately exercisable in the event that the Executive’s termination (other than for Cause or Disability (as defined under the Company’s Long-term Disability Plan or Policy, as in effect on the date of termination of the Executive’s employment)) occurs within twenty-four (24) months of the Change in Control. 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. The payments and benefits described in this Section 5, as applicable, shall be provided to the Executive upon termination of his employment described in Section 4, subject to Section 8, Section 12(h) and Section 12(l) hereof.
(a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY, OR FOR GOOD REASON, OCCURRING PRIOR TO A CHANGE IN CONTROL. If, during prior to the Employment Periodoccurrence of a Change in Control, the Company shall terminate terminates the Executive's ’s employment for any reason other than for Cause or Disability Disability, or the Executive shall terminate terminates his employment either for Good Reason or without any reason during the Window PeriodReason, then, subject to subsection 5(f) below and Section 8, Section 12(h) and Section 12(l) hereof:
(i) the Company shall pay to the Executive Executive, not later than 30 days following the Date of Termination, any accrued unpaid amounts of the Executive’s Annual Base Salary, accrued unused vacation, and earned annual bonus for periods prior to the Date of Termination (the “Accrued Amounts”);
(ii) the Company shall pay to the Executive, in a lump sum in cash within 30 fifteen days after the Date of Termination the aggregate of the following amounts:
A. thereafter (subject to postponement under Section 12(h) or Section 12(l)), an amount equal to the sum of (1) the Executive's Annual Base Salary which would have been paid to the Executive had he remained employed through the end of the then-current Term and (2) the product obtained by multiplying (A) the Target Bonus by (B) the quotient obtained by dividing the number of days remaining in the term on the date of termination by 365 (in each case without giving effect to any reduction in the Annual Base Salary or Target Bonus prior to such termination, such amount, the “Severance Payment”);
(iii) the Executive’s then-unvested portion of all equity or equity-based awards (including the Initial RSU Grant, the Initial Option Grant and, if granted and outstanding on the Date of Termination, the renewal grant described in Section 3(d)) shall be immediately fully vested and nonforfeitable, all stock options exercisable and all restricted stock units immediately payable (including any unpaid dividend equivalents thereon), and, in the case of the Initial Option Grant, the Executive shall have twelve months from the Date of Termination to exercise such option (subject to the extent not theretofore paid and Company’s right to effect an equitable adjustment of option awards generally in connection with a corporate transaction);
(2iv) any compensation previously deferred by the Company shall provide to the Executive (together with any accrued interest or earnings thereon) and any accrued vacation payand/or the Executive’s eligible dependents, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued Obligations"case may be); and
B. , for a period of twelve (12) months following the amount Date of Termination, the various welfare benefits under Section 3(e) to which he (such amount shall be hereinafter referred to and/or his eligible dependents, as the "Severance Amount"case may be) equal to in which he participated immediately before the product Date of Termination (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. on 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 remainder of the Employment Period, assuming for this purpose that all accrued benefits are fully vested and that benefit accrual formulas are basis no less advantageous to the Executive favorable than those that in effect during immediately before 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) 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"Termination); and
(iiv) 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 all accrued and vested compensation and benefits required payable to be paid or provided or which the Executive and/or under the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement terms of the Company and its affiliated companies Company’s welfare benefit plans, programs or arrangements as in effect and applicable generally immediately prior to other executives and their families during the 90-day period immediately preceding Date of Termination (the Applicable Date (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 1 contract
Samples: Employment Agreement (Chiquita Brands International Inc)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODBy the Company other than for Cause, Death or Disability; OTHER THAN FOR CAUSE, DEATH OR DISABILITYby the Executive for Good Reason. If, during the Employment Period, the Company terminates the Executive's employment, other than for Cause, Death, or Disability, or the Executive terminates employment for Good Reason, the Company shall terminate 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 and will be entitled to receive all retiree welfare benefits and other benefits provided to retired senior executives, as set forth in Section 3(c), with such benefits being calculated for this purpose as though the Executive had retired at age 62 with earnings on an annual basis during the years between the Date of Termination and age 62 equal to the Executive's earnings for the year immediately preceding the Date of Termination); provided, that the Incentive Compensation for the period through the end of the Employment 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; and provided, further that to the extent any 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; 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)(iv) 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 Cause or Disability or for the Executive shall terminate employment either for Good Reason or without any reason during the Window Period:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (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 actions of the Company and its affiliated companies providing benefits for the Executive (the "SERP") which the Executive would receive if leading to a termination of 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 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, 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"); and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 by the Executive for retiree benefits pursuant to such plansGood Reason, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Employment Period sole 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")exclusive remedy therefor.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODOther than for Cause, Death or Disability; OTHER THAN FOR CAUSE, DEATH OR DISABILITYGood Reason. If, during the Employment Protected Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during and the Window Period:Executive executes a release substantially in the form attached hereto as Exhibit A (a "Release"):
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, or if later, within 5 days after the Executive executes the Release, the aggregate of the following amounts:
A. (A) the sum of the following amounts, to the extent not previously paid to the Executive (1the "Accrued Obligations"): (i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and Termination; (2ii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum a pro rata portion of the amounts described Annual Bonus for the year in clauses (1) and (2) shall be hereinafter referred to which the Date of Termination occurs, computed as the "Accrued Obligations"); and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1x) three the Severance Annual Bonus Amount, and (2y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365; and (iii) any accrued pay in lieu of unused vacation; and
(B) the product of (i) [three] [two] and (ii) the sum of (x) the Executive's Annual Base Salary and Amount, (y) any bonus described in Section 4(b)(iithe Severance Annual Bonus Amount, and (z) paid or payable in respect the amount of the employer matching contributions made or credited to the Executive's accounts in the Savings Plans for the most recently completed fiscal recent plan year that ended before the date of the Company; andChange of Control or, provided furtherif higher, for the most recent plan year that such amount shall be reduced by ended after the present value (determined as provided in Section 280G(d)(4) date of the Internal Revenue Code Change of 1986, as amended Control (in either case annualized to the "Code")) extent such plan year consisted of any other amount of severance relating to salary or bonus continuation to be received by less than 12 months and/or the Executive upon termination of employment of was not eligible to participate in such Savings Plan for the Executive under any severance plan, severance policy or severance arrangement of the Companyfull plan year); and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) 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 aggregate benefit payable under the Retirement Plan Plan, the SERP and any supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for the Executive (the "SERP") which Individual SERP that the Executive would receive have accrued (whether or not vested) if the Executive's employment had continued at for the Severance Period, based on the assumption that the Executive's compensation level provided for in during the Severance Period was that required by Sections 4(b)(i2(b)(1) and 4(b)(ii2(b)(2), over (ii) of this Agreement for the remainder actual vested benefit, if any, of the Employment PeriodExecutive under the Retirement Plan, assuming for this purpose that all accrued benefits are fully vested the SERP and that any Individual SERP, in each case, determined as a single lump sum benefit accrual formulas are amount as of the Date of Termination, on an actuarial present value basis, using actuarial assumptions no less advantageous favorable to the Executive than the most favorable of 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) purposes of the Executive's actual computing benefit (paid or payable), if any, entitlements under the Retirement Plan and the SERP (at any time from the amount day before the date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andChange of Control;
(ii2) for the remainder of the Employment Severance Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits Specified Welfare 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, family; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare medical, dental, prescription drug and vision benefits under another employer employer-provided planplan during the Severance Period, the medical and other welfare benefits described herein comparable Specified Welfare Benefits shall be secondary to those provided under such other plan during such applicable period of eligibility while the Executive is so eligible;
(such continuation of such benefits 3) for the applicable period herein set forth shall be hereinafter referred to as "Welfare Benefit Continuation"). For purposes of determining the Executive's eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policiesRetiree Welfare Benefits, the Executive shall be considered to have remained employed until the end of the Employment Severance Period and to have retired on the last day of such period, and, if the Executive has reached age 50 as of the Date of Termination, then the Executive shall be fully vested in, and shall be entitled to receive, beginning at the end of the Severance Period, lifetime retiree medical benefits at least as favorable as those to which the Executive would have been entitled if the Executive had retired with full eligibility for the Retiree Welfare Benefits in effect as of the date of the Change of Control;
(4) the Company shall provide the Executive with outplacement services, in accordance with its normal practice for its most senior executives, as in effect before the date of the Change of Control, from the outplacement firm or firms with which the Company has contracted as of the Date of Termination or thereafter; and
(iii5) to the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or any Other Benefits. Notwithstanding the foregoing: (i) if the Company determines that it is not possible to provide any of the Specified Welfare Benefits or Retiree Welfare Benefits as required above through plans sponsored by the Company and the Affiliated Companies under the terms thereof, or that providing any of the Specified Welfare Benefits or Retiree Welfare Benefits through such plans would have adverse tax consequences for the Executive's family , then the Company shall provide such Specified Welfare Benefits or Retiree Welfare Benefits in a manner that keeps the Executive in the same position, on an After-Tax basis, as if the Executive had remained employed by the Company during the Severance Period; provided, that if it is not reasonably practicable to so provide such Specified Welfare Benefits or Retiree Welfare Benefits, then the Company shall, instead, make a cash payment that is equal, on an After-Tax basis, to the value of such Specified Welfare Benefits or Retiree Welfare Benefits; and (ii) any other amounts or disability benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive might otherwise become entitled 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 Specified Welfare Benefits shall begin at the 90-day period immediately preceding conclusion of the Applicable Date (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits")Severance Period.
Appears in 1 contract
Samples: Change of Control Employment Security Agreement (Monsanto Co /New/)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, the Company shall terminate the Executive's employment other than for Cause or Disability (and other than due to Disability), the Executive shall terminate his employment for Good Reason at any time, or the Executive shall terminate his employment either for Good Reason or without any reason during the 30-day period (the "Window Period") immediately following the first anniversary of the Change of Control Date:
(i) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid; (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and to the extent the Executive has elected to accelerate such compensation on his termination; (3) any accrued vacation pay; and (4) unreimbursed expenses due the Executive pursuant to Section 3(f), in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (21)-(4) shall be hereinafter referred to as the "Accrued Obligations");
(B) the product of (1) the greater of (I) the highest Annual Bonus (annualized for any fiscal year consisting of less than twelve full months) earned by the Executive under the Cash Bonus Plans in respect of the three most recent full fiscal years ending on or prior to the Date of Termination, or (II) the Executive's target Annual Bonus for the fiscal year during which the Date of Termination occurs (such greater amount, the "Highest Annual Bonus") and (2) a fraction, the numerator of which is the number of days in the fiscal year of such termination through the Date of Termination, and the denominator of which is 365 (such product, the "Pro-Rata Bonus"); and
B. (C) 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 (determined without regard to any reduction constituting Good Reason), (y) any bonus described in Section 4(b)(iithe Highest Annual Bonus and (z) paid or payable in respect the highest of the amounts contributed on behalf of the Executive under the Schering Corporation Employee's Profit Sharing Plan or any successor or replacement plan thereto and the Schering Corporation Profit Sharing Excess Benefits Plan or any successor or replacement plan thereto, for each of the three most recently completed fiscal years preceding the Date of Termination (and annualized for any fiscal year consisting of the Companyless than twelve full months); andprovided, provided furtherhowever, that such amount at the Executive's election, either (p) the Severance 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 Company (1"Other Severance") or (q) 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) Severance Amount shall be payable in lieu 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 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, 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 an amount of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andOther Severance not exceeding such present value;
(ii) for a period of three years from and after the remainder Date of the Employment PeriodTermination, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive 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)(iv3(e) of this Agreement if the Executive's employment had not been terminated terminated, in accordance with the most favorable plans, practices, programs or policies of the Company and its affiliated companies Affiliated Companies as in effect and applicable generally to other senior executives of the Company and its Affiliated Companies and their families during the 90-day period immediately preceding the Applicable DateDate of Termination or, if more favorable to the Executive, as in effect at any time thereafter or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other senior executives of the Company and its Affiliated Companies and their families, and for purposes of determining eligibility of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the third anniversary of the Date of Termination and to have retired on the date of such third anniversary; 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 (eligibility; and, provided, further, that to the extent that the Company's plans, programs and arrangements do not permit such continuation of such the Executive's participation following his termination, the Company shall provide the Executive, no less frequently than quarterly in advance with an amount which, after taxes, is sufficient for him to purchase equivalent benefits (the continuation of welfare benefits for the applicable period herein set forth in this Section 5(a)(ii) shall be hereinafter referred to as "Welfare Benefit Continuation"). For ;
(iii) for purposes of calculating the Executive's benefits (and benefits due to the Executive's beneficiaries) under the SERP, the following special rules shall apply:
(A) the Executive's Benefit (as defined in the SERP) shall be 32% of his Average Final Earnings (as defined in the SERP), subject to clauses (B) and (C) below); (B) the Executive's Average Final Earnings shall be computed as if the Executive had continued to be employed by the Company in E-grade status (as defined in the SERP) through December 31, 2010, and as if he had continued, through December 31, 2010, to receive his Base Salary at the rate in effect immediately before the Date of Termination (determined without regard to any reduction thereof constituting Good Reason), and to receive, for each fiscal year concluding after the Date of Termination but on or before December 31, 2010, an Annual Bonus equal to the Highest Annual Bonus; (C) no compensation paid pursuant to this Section 5(a), other than pursuant to Section 5(a)(i)(A)(1) and Section 5(a)(i)(B), shall be taken into account in determining eligibility the Executive's Average Final Earnings; and (D) the reduction for early payment under Section 4.3 of the Executive for retiree benefits pursuant SERP shall not apply;
(iv) notwithstanding any provision of this Agreement or of the 2002 Stock Plan to such plansthe contrary, practices, programs the Options shall immediately vest in full and policies, the Executive shall be considered to have remained employed until the end treated, for purposes of the Options, as if he had incurred a "Termination of Employment Period and to have retired on by reason of retirement" within the last day coverage of such periodSection 6(f)(i) of the 2002 Stock Plan; and
(iiiv) notwithstanding any provision of this Agreement to the extent not theretofore paid or providedcontrary, the Company all 200,000 Shares 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 immediately vest 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")full.
Appears in 1 contract
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIODGood ------------------------------------------- ---- Reason; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment ------------------------------------------------- Period, the Company shall terminate terminates the Executive's employment other than for Cause or Disability or the Executive shall terminate terminates employment either for Good Reason or without any reason during the Window PeriodReason:
(i1) the Company shall pay to the Executive Executive, in a lump sum in cash within 30 days after the Date of Termination Termination, the aggregate of the following amounts:
A. (A) the sum of (1i) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid paid, (ii) the product of (x) the higher of (I) the Recent Annual Bonus and (2II) 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 (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365, and (iii) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case case, to the extent not theretofore paid (the sum of the amounts described in clauses subclauses (1i), (ii) and (2) shall be hereinafter referred to as iii), the "Accrued Obligations"); and;
B. (B) the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1i) three and (2ii) 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 CompanyHighest Annual Bonus; and
C. a separate lump sum supplemental retirement benefit (C) an amount equal to the difference between excess of (1i) the actuarial equivalent (utilizing for this purpose of the actuarial assumptions utilized with respect to benefit under the Employees Retirement Plan for Pogo Producing Company (or any successor Company's qualified defined benefit retirement plan thereto) (the "Retirement Plan") during (utilizing actuarial assumptions no less favorable to the 90-day period immediately preceding the Applicable Date) of the benefit payable Executive than those in effect under the Retirement Plan immediately prior to the Effective Date) and any excess or supplemental and/or excess retirement plan of the Company and its affiliated companies providing benefits for in which the Executive participates (collectively, the "SERP") which that the Executive would receive if the Executive's employment continued at for three years after the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date of this Agreement for the remainder of the Employment PeriodTermination, assuming for this purpose that all accrued benefits are fully vested and assuming that benefit accrual formulas are no less advantageous to the Executive than those Executive's compensation in effect during each of the 90-day period immediately preceding the Applicable Datethree years is that required by Sections 3(b)(1) and 3(b)(2), and over (2ii) 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 (as of the amount Date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount"); andTermination;
(ii2) for three years after the remainder Executive's Date of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(4) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives of the Company and its the affiliated companies as in effect and applicable generally to other executives and their families during the 90-day period immediately preceding the Applicable Datefamilies, provided, however, that 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(3) the Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in the Executive's sole discretion;
(4) any unvested stock options and restricted stock granted on or prior to the date hereof shall become immediately vested and exercisable, and all options granted on or prior to the date hereof that are vested, but unexercised, as of the Date of Termination shall remain exercisable for the period during which they would have been exercisable absent the termination of the Executive's employment; and
(iii5) 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 that 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 the 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 benefits, the "Other Benefits").
Appears in 1 contract
Samples: Employment Agreement (National Commerce Bancorporation)
Obligations of the Company Upon Termination. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSEOther Than for Cause, DEATH OR DISABILITYDeath or Disability or Voluntary Termination prior to July 1, 2002. If, during the Employment Period, (i) the Company and its affiliated companies shall terminate the Executive's employment other than for Cause or Disability Disability, or (ii) the Executive shall voluntarily terminate employment either for Good Reason or without any reason during reason, other than Disability, after June 30, 2002, and after giving 30 days' prior written notice of such termination to the Window PeriodCompany:
(i) the The Company shall pay to the Executive in a lump sum in cash Executive, within 30 days after the Date of Termination Termination, a lump-sum cash payment of $1,999,933, together with interest on this amount accrued from January 1, 2001 through the aggregate date of payment at 120% of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any compensation previously deferred short-term Applicable Federal Rate for January, 2001, compounded semi-annually, as published by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum Internal Revenue Service for purposes 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)(41274(d) of the Internal Revenue Code of 1986, as amended (the "Code");
(ii) of any other amount of severance relating to salary or bonus continuation to be received by Should the Executive upon termination of employment move his residence in order to pursue other business opportunities within three years of the Date of Termination (or until his normal retirement date, whichever is sooner), the Company shall reimburse him for any expenses incurred in that relocation (including taxes payable on the reimbursement) which are not reimbursed by another employer; provided, however, that the Executive under any severance plan, severance policy or severance arrangement of the Company; and
C. a separate lump sum supplemental retirement benefit equal shall be entitled to the difference between (1) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized such reimbursement with respect to only one such relocation, and the Employees Retirement Plan Executive shall be entitled to specify the relocation for Pogo Producing which reimbursement hereunder is to be made. Benefits under this provision will include the assistance, at no cost to the Executive, in selling his home and other assistance which was customarily provided to executives transferred within the 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 between the Company and its affiliated companies providing benefits for prior to the Executive Effective Date;
(the "SERP"iii) which the Executive would receive if For three years after the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) Date 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, 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"); and
(ii) for the remainder of the Employment PeriodTermination, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue 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)(iv2(b)(iii) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in accordance effect generally at any time thereafter with the most favorable plans, practices, programs or policies respect to other peer executives 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 Datefamilies, 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")eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the end Date of the Employment Period Termination and to have retired on the last day of such period;
(iv) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion; and
(iiiv) to To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or the Executive's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family is eligible to receive pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies as in effect and applicable generally to other 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. (a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment ------------------------------------------- Consulting Period, the Company shall terminate the ExecutiveConsultant's employment other than services whether for Cause or Disability or otherwise or the Executive Consultant's services shall terminate employment either for Good Reason or without any be terminated by reason during the Window Periodof death:
(i) the Company shall pay to the Executive Consultant or his estate, as the case may be, in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. the sum any unpaid annual salary and annual bonus in respect of (1) the Executive's Annual Base Salary through the Date of Termination calendar year 1997 required to be paid to the extent not theretofore paid and (2) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case Consultant pursuant to the extent not theretofore paid Employment Agreement between the Company, BayBanks, Inc. and the Consultant dated as of December 12, 1995 (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the "Accrued ObligationsEmployment Agreement"); and
B. the amount (such amount shall be hereinafter referred to as the "Severance Amount") equal to the product of (1) three the number of months (including fractions thereof) from the Date of Termination until December 31, 1998 (the "Continuation Period") 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 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, 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")Monthly Fee; and
(ii) for the remainder of the Employment Continuation Period, or such longer period as any may be provided by the terms of the appropriate plan, program, practice or policy may providepolicy, the Company shall continue benefits to the Executive Consultant and/or the ExecutiveConsultant's family at least equal to those which that would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv3(b)(iii) of this Agreement if the ExecutiveConsultant's employment services had not been terminated in accordance with or, if more favorable to the most favorable plansConsultant, 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")at any time thereafter. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive Consultant for retiree benefits pursuant to such plans, practices, programs and policies, the Executive Consultant shall be considered to have remained employed until been an employee throughout the end of the Employment Continuation Period and to have retired on the last day of such periodperiod and such benefits shall commence immediately after the Continuation 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 Consultant any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive's family Consultant 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. (a) GOOD REASON OR DURING THE WINDOW PERIODBy Executive for Good Reason; OTHER THAN FOR CAUSEBy the Company Other Than for Cause, DEATH OR DISABILITYDeath or Disability. If, during the Employment Period, the Company shall terminate the Executive's ’s employment other than for Cause Cause, Death or Disability or the Executive shall terminate employment either for Good Reason or without any reason during the Window PeriodReason:
(i) subject to Section 11(l), the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
A. (A) the sum of (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and paid, (2) any compensation previously deferred Executive’s business expenses that are reimbursable pursuant to Section 3(b)(v) but have not been reimbursed by the Executive Company as of the Date of Termination; (together with any accrued interest or earnings thereon3) and 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, in each case pay to the extent not theretofore paid (the sum of the amounts described in subclauses (1), (2), (3) and (4), the “Accrued Obligations”); and (5) an amount equal to the product of (x) the Recent Bonus and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 (the “Pro Rata 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 (21) or clause (3), and such portion shall not be hereinafter referred to considered as part of the "“Accrued Obligations"” but shall instead be an “Other Benefit” (as defined below); andand
B. (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 ’s Annual Base Salary and (y) any bonus described the greater of the Annual Cash Bonus (at target) in Section 4(b)(ii) paid the year of a Change in Control or the average of the Annual Cash Bonus earned by Executive during the three years prior to a Change in Control (including the full value of the Annual Cash Bonus, whether 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"cash or another form)) 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 (C) an amount 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 Affiliates contributions under the tax-qualified defined contribution plan and any excess or supplemental defined contribution plans sponsored by the Company or its Affiliates, in which Executive participates as of immediately prior to the Date of Termination (or, if more favorable to Executive, the "SERP"plans as in effect immediately prior to the Effective Date) which (collectively, the “Savings Plans”) that Executive would receive if the Executive's ’s employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of this Agreement for the remainder three year period following the Date of Termination (the Employment “Benefits Period”), assuming for this purpose that all accrued benefits are (A) Executive is fully vested and that benefit accrual formulas are no less advantageous 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 Executive than those in effect during Annual Base Salary and the 90-day period immediately preceding the Applicable DateRecent Bonus, and such amounts are paid in equal installments ratably over each year of the Benefits Period; (2C) the actuarial equivalent (utilizing for this purpose the actuarial assumptions utilized Executive received an Annual Bonus with respect to the Retirement Plan during year in which the 90-day period 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 already been credited to Executive under the 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 preceding prior to the Applicable 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; and
(D) an amount equal to the product of (A) the sum of (x) 150% of the monthly premiums for coverage under the Company’s or and its Affiliates health care plans for purposes of continuation coverage under 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 (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 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), and (B) the number of months in the Benefits Period; and
(E) all of the Executive's ’s equity awards subject to performance-based vesting (“Performance Awards”) will become fully vested as of the date of termination of employment: (i) based on actual benefit performance measured as of the most recent completed fiscal quarter, and (paid or payable)ii) if actual performance cannot be determined, if any, under all Performance Awards will vest as to all shares subject to an outstanding Performance Award at the Retirement Plan target performance level; and all of the SERP (Executive’s equity awards subject to time-based vesting will become fully vested as of the amount date of such benefit shall be hereinafter referred to as the "Supplemental Retirement Amount")termination of employment; and
(ii) for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall, at its sole expense as incurred, provide Executive with outplacement services the scope and provider of which shall continue benefits be selected by the Company prior to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in 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 Effective Date, ; provided, howeverfurther, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare such outplacement 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 not later than the last day of such periodthe second calendar year that begins after the Date of Termination; and
(iii) except as otherwise set forth in the last sentence of Section 6, 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 that 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 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/)