Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for: (i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and (ii) 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 (“Other Benefits”). (b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award. (c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award. (d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable: (i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement. (ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii). (iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award. (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 the Other Benefits. (v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control. (e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 9 contracts
Samples: Employment Agreement (Reata Pharmaceuticals Inc), Employment Agreement (Reata Pharmaceuticals Inc), Employment Agreement (Reata Pharmaceuticals Inc)
Obligations of the Company Upon Termination. (a) Termination by the Company for other than Cause or Disability or Termination by the Employee for Good Reason. If the Employee's employment is terminated by the Company for any reason, other than Cause or Disability or by the Employee for Good Reason:
(i) the Company shall pay to the Employee, (A) within five (5) business days after the Date of Termination, any earned but unpaid Annual Base Salary and any expense reimbursement payments owed to the Employee, and (B) no later than March 15 of the year in which the Date of Termination occurs, any earned but unpaid Annual Bonus payments relating to the prior calendar year (the "Accrued Obligations");
(ii) the Company shall pay to the Employee, within thirty (30) business days after the Date of Termination, a prorated Annual Bonus based on (A) the target Annual Bonus opportunity in the year in which the Date of Termination occurs or the prior year if no target Annual Bonus opportunity has yet been determined and (B) the fraction of the year the Employee was employed;
(iii) the Company shall pay to the Employee, within thirty (30) business days after the Date of Termination, a lump-sum payment equal to 200% of the sum of (x) the Employee's Annual Base Salary in effect immediately prior to the Date of Termination (disregarding any reduction in Annual Base Salary to which the Employee did not expressly consent in writing) and (y) the highest Annual Bonus paid to the Employee by the Company within the three (3) years preceding his termination of employment or, if higher, the target Annual Bonus opportunity in the year in which the Date of Termination occurs;
(iv) all stock option, restricted stock and other equity-based incentive awards granted by the Company that were outstanding but not vested as of the Date of Termination shall become immediately vested and/or payable, as the case may be; and
(v) for a three (3) year period after the Date of Termination, the Company will provide or cause to be provided to the Employee (and any covered dependents), with life and health insurance benefits (but not disability insurance benefits) substantially similar to those the Employee and any covered dependents were receiving immediately prior to the Notice of Termination at the same level of benefits and at the same dollar cost to the Employee as is available to the Company's executive officers generally, provided that the Employee's continued receipt of such benefits is possible under the general terms and provisions of the applicable plans and programs, and provided further, that such benefits would not be taxable to the Employee or subject to Section 409A of the Internal Revenue Code of 1986, as amended (the "Code"). In the event that the Employee's participation in any such plan or program is prohibited, the Company shall, at its expense, arrange to provide the Employee with benefits substantially similar to those which the Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is prohibited. If the Company arranges to provide the Employee and covered dependents with life and health insurance benefits, those benefits will be reduced to the extent comparable benefits are received by, or made available to, the Employee (at no greater cost to the Employee) by another employer during the three (3) year period following the Employee's Date of Termination. The Employee must report to the Company any such benefits that he receives or that are made available. In lieu of the benefits described in this Section 8(a)(v), the Company, in its sole discretion, may elect to pay to the Employee a lump sum cash payment equal to the monthly premiums that would have been paid by the Company to provide such benefits to the Employee for each month such coverage is not provided under this Section 8(a)(v). Nothing in this Section 8(a)(v) will extend the COBRA continuation coverage period.
(b) Termination by the Company for Cause or by the Executive other than for Employee without Good Reason. If, during If the Employment Period, or any Additional Employment Period, the Executive’s Employee's employment with the Company is terminated (i) by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Employee without Good Reason, the Executive will Company's only obligation under this Agreement shall be entitled to (i) the Accrued Obligations payment of any earned but unpaid Annual Base Salary and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal any expense reimbursement payments owed to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardEmployee.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 7 contracts
Samples: Employment Agreement (Fidelity National Information Services, Inc.), Employment Agreement (Fidelity National Financial, Inc.), Employment Agreement (Fidelity National Financial, Inc.)
Obligations of the Company Upon Termination. (a) Termination by By the Company Other Than for Cause Cause; or by By the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, Company terminates the Executive’s employment with the Company is terminated by the Company for any reason under this Agreement (other than for Cause (and not due to death or DisabilityCause) or by the Executive terminates employment under this Agreement for Good Reason, :
(1) the Executive will shall be entitled to (i) continued payment for eighteen (18) months after the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to Date of Termination of the Executive’s then current Annual Base Salary, payable base salary (as in effect on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held and (ii) a bonus equal to the average of the annual bonuses earned by the Executive that otherwise would have been forfeited will continue to remain outstandingover the three complete years (or if less than three years, unvested (and will not continue vestingthe average bonus earned during such shorter period) and subject to forfeiture for a period of six months following preceding the Date of Termination (such equity awardsthat is, not including the “Unvested Equity Awards”). If a Change in Control occurs during such six bonus year that includes the Date of Termination) to be paid on the first business day at the conclusion of the eighteen month period after the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment Date of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.Termination; and
(d2) Certain Terminations within six months prior to, or within two years following, a Change in Control. In for the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to eighteen (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b18) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days month period following the Date of Termination, the Executive will receive waiver of the applicable premium otherwise payable for COBRA continuation coverage for the Executive, his spouse and eligible dependents (Bto the extent covered on the Date of Termination) subject for health, prescription, dental and vision benefits; provided, however, that to Sections 4(fthe extent COBRA continuation coverage eligibility expires (unless such expiration is due to eligibility for other group health insurance or Medicare) and 4(h)before the end of such eighteen month period, a lump sum cash the Executive will receive payment, on an after-tax basis, of an amount equal to two times the Executive’s then current Annual Base Salary, such sum premium the Company would have otherwise waived for COBRA coverage. The obligations of the Company to be paid provide benefits under this Section 5(a)(2) shall terminate on the next payroll date immediately following of occurrence of the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier first to occur of (A) the 24 month anniversary any of the Date following, if any of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans following should occur prior to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
eighteen (iii18) Subject to Section 4(f), notwithstanding month period: (i) the provisions date of commencement of eligibility of the Executive under the group health plan of any applicable plan other employer or agreement, all equity awards granted by (ii) the Company to, or otherwise held bydate of commencement of eligibility of the Executive for Medicare benefits. In addition, the Executive shall immediately vest in full and be entitled to receive executive level outplacement assistance under any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled outplacement assistance program then being maintained by the Company in accordance with the terms of any such program. The Executive shall also become vested in any outstanding options, restricted stock or other equity incentive awards only to the applicable plan extent provided for under the terms governing such equity incentive award. The Company shall also pay, or award agreement; providedcause to be paid, howeverto the Executive, in a lump sum in cash within 30 days after the Date of Termination (or, in the case of the pro-rated Annual Bonus Amount, at the time such bonus would otherwise be paid), the Executive may electExecutive’s accrued but unpaid cash compensation (the “Accrued Obligations”), which shall include but not be limited to, (W) the Executive’s base salary through the Date of Termination that has not yet been paid (X) an amount representing a 100% target bonus for the Executive’s salary grade for the year of termination, multiplied by a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the Company will allowdenominator of which is 365 (the “Annual Bonus Amount”), the exercise of (Y) any outstanding stock optionsaccrued but unpaid vacation pay, and the satisfaction of any required tax withholding with respect (Z) similar unpaid items that have accrued and as to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to which the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting has become entitled as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In additionDate of Termination, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control including declared but unpaid bonuses and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Controlunreimbursed employee business expenses; provided, however, that if 100% the Company’s obligation to make any payments, or cause any payments to be made, under this paragraph (a) to the extent any such payment shall not have accrued as of the equity awards would otherwise become vested pursuant day before the Date of Termination shall also be conditioned upon the Executive’s execution, and non-revocation, of a written release, substantially in the form attached hereto as Exhibit 1, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment under this Agreement or the termination thereof (other than any entitlements under the terms of this Agreement to indemnification or under any other plans or programs of the Company in which the Executive participated and under which the Executive has accrued and is due a benefit). If any payment, compensation or other benefit provided to the vesting rules stated above Executive in connection with his employment termination is determined, in whole or in part, to constitute “nonqualified deferred compensation” within the Equity Documents prior meaning of Section 409A of the Code and the Executive is a specified employee as defined in Section 409A(a)(2)(B)(i) and Income Tax Regulations under Section 409A, no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the Date of Termination (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to the eighteen month anniversary Executive during the period between the termination date and the New Payment Date shall be paid to the Executive, without interest, in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the date of day immediately following the Change in ControlNew Payment Date shall be paid without delay over the time period originally scheduled, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes the terms of this Agreement, “Change in Control” means the occurrence of any of the following events:.
Appears in 5 contracts
Samples: Employment Agreement (Safari Holding Corp), Employment Agreement (Safari Holding Corp), Employment Agreement (PharMerica CORP)
Obligations of the Company Upon Termination. (a) Termination Death, Disability, Good Reason or Other than For Cause. If, during the Employment Period and prior to the expiration of the Term of the Agreement, the Executive’s employment is terminated by reason of the Executive’s death or Disability, by the Parent or the Company for any reason other than for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) The Company shall pay to the Executive (or Executive’s heirs, beneficiaries or representatives as applicable), at the times specified in clause (x), the following amounts:
(A) an amount equal to the Executive’s Annual Base Salary through the Date of Termination for periods following his Separation From Service to the extent not theretofore paid;
(B) an 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 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”) and (y) a fraction, the sum numerator of (w) which is the Executive’s Annual Base Salary earned number of days in the current fiscal year through the Date of Termination, and the denominator of which is three hundred sixty-five (x365);
(C) an amount equal to two times the sum of (i) the Bonus highest Annual Base Salary received by the Executive in the last five (5) years ended prior to the Termination Date and (ii) the Highest Annual Bonus;
(D) an amount equal to two times the sum of (i) 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 Date of Termination, and (ii) the amount that would have been credited and contributed to the Executive and his accounts under all other deferred compensation plans (excluding the ERP and the SRP) 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 federal or state taxes payable thereon equals the amount first described above; and
(E) the total value of all fringe benefits received by the Executive on an annualized basis multiplied by two (2).
(ii) For a period of two (2) years from the Executive’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and the Executive’s family equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 3(b)(iv) of the Employment Agreement if the Executive’s employment had not been 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 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. 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 benefits. The Executive shall be eligible for reimbursement for covered welfare expenses, or for the fiscal 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 ending will not affect the expenses eligible for reimbursement, or the benefits to be provided, in any other taxable year (with the exception of applicable 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 accumulated and paid to the Executive on the 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 paid no later than the earlier of (i) the time periods described above and (ii) the last day of the Executive’s taxable year following the taxable year in which the expense was incurred.
(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 prior to one hundred percent (100%) vested as of the Date of Termination. All options to acquire common shares of the Parent, (y) compensation previously deferred 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.
(together iv) The Company shall, at its sole expense as incurred, provide the Executive with any accrued interest reasonable outplacement services from a provider selected by the Executive in his sole discretion. The Company shall directly pay the provider the fees for such outplacement services. The period during which such outplacement services shall be provided to the Executive at the expense of the Company shall not extend beyond the last day of the second taxable year of the Executive following the taxable year of the Executive during which he incurs a Separation From Service.
(v) At the time specified in clause (x) below, ownership of all country club memberships, luncheon clubs and other memberships which the Company was providing for the Executive’s or earnings thereonhis family’s use prior to the time that the Notice of Termination is given shall be transferred and assigned to the Executive at no cost to the Executive (other than ordinary income taxes owed), and (z) any accrued and unused vacation pay through the Date cost of Termination (transfer, if any, to be borne by the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; andCompany.
(iivi) At the time specified in clause (x) below, the Company shall pay the Executive a lump sum in cash equal to the Executive’s annual car allowance multiplied by two (2).
(vii) 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”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(vviii) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions by reason of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with 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 (or and its successor) continues following affiliated companies to the Change estates and beneficiaries of the executive officers of the Company and such affiliated companies under such plans, programs, practices and policies relating to death benefits, if any, in Controleffect on the date hereof or, any outstanding equity awards that are not vested if more favorable, those in effect on the date of the Change Executive’s death.
(ix) If the Executive’s employment is terminated by reason of the Executive’s Disability, the Other Benefits (as defined in Control this Section) shall become vested andalso include, as applicablewithout limitation, exercisable and 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 the Executive’s disabled peer executive officers and/or their families in accordance with respect such plans, programs, practices and policies relating to one-eighteenth of all such unvested equity awards disability, if any, in effect generally on the one month anniversary of the Change date hereof or, if more favorable, those in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards effect at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant Disability.
(x) The Company shall pay or provide to the vesting rules stated above Executive the amounts or benefits specified in the Equity Documents prior to the eighteen month anniversary of Sections 3(a)(i)(A), 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and 3(a)(i)(E), and Sections 3(a)(v) and 3(a)(vi) 30 days following the date of the Change 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.
(xi) 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 Controladdition to the amounts reflected in clause (x), then an amount equal to the equity awards will become vested 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) and, as applicableto the extent subject to a mandatory six-month delay in payment, exercisable in accordance with all amounts payable under the ERP and the SRP, for the period commencing on the date of the Executive’s Separation From Service until the date of payment of such vesting rules or Equity Documents. For purposes amounts, calculated using an interest rate of five percent per annum (the “Interest Amount”).
(xii) Notwithstanding any other provision of this AgreementAgreement to the contrary, “Change in Control” means the occurrence of any amount of the following events:payment under each of Sections 3(a)(i)(B), 3(a)(i)(C), 3(a)(i)(D) and 3(a)(i)(E) shall not exceed the amount that would have been paid to the Executive had his Date of Termination occurred on December 31, 2008.
Appears in 5 contracts
Samples: Employment Agreement (Weatherford International Ltd./Switzerland), Employment Agreement (Weatherford International LTD), Employment Agreement (Weatherford International LTD)
Obligations of the Company Upon Termination. (a) Prior to or More than Two Years after a Change in Control: Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or by the Executive other than for Good ReasonDisability; Expiration of Executive’s Employment Period. If, prior to or more than two years after a Change in Control and during the Employment Period, or any Additional Executive’s Employment Period, the Company terminates Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Poor Performance, Cause or Disability, or Executive terminates his employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, or Executive’s employment terminates upon the expiration of the Executive’s Employment Period, as described in Section 3, then, subject to Section 8(f) below (and not due to death or Disability), the Company shall have no further payment obligations with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive or his legal representatives under this Agreement, other than for:executes a Release in substantially the form of Exhibit A hereto and the period for revoking such Release (the “Release”) has expired before the 30th day after the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment) the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (wA) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (zB) any accrued and unused vacation pay through the Date of Termination (will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), which sum shall the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly or other installments (not less frequently than monthly) as are customary under the Company’s payroll practices from time to time, with the installments that otherwise would be paid within 15 the first 30 days following after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) on the 30th day after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum in cash an amount equal to 100% of his bonus opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the bonus opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(iivi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, (B) the 90th day following the end of the Normal Severance Period or (C) 10 years from the date of grant of the options; and
(viii) to the extent not theretofore paid or provided, the Company shall will timely pay or provide to the Executive and/or the Executive’s family any his 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 the plans, policies, practices and programs under any plan, program, policy or practice or contract or agreement of the Company (“which such Other Benefits”)Benefits are provided.
(b) Death Prior to or Disability prior to, or more More than two years after, Two Years after a Change in Control: Termination by the Company for Poor Performance. Upon the Executive’s death or Disability during the Employment PeriodIf, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have terminates Executive’s employment for Poor Performance, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vi) below, only if Executive executes the Release and the period for revoking such Release expires before the 30th day after the Date of Termination):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment); and
(ii) for a period of 12 months after the Date of Termination (the “Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly installments or other installments (not less frequently than monthly) as are customary under the Company’s payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no further payment obligations less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive or his legal representatives under this Agreement, other than equal to the full premium amount; with Executive being required to pay the amount of such premiums for (i) the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the Accrued Obligations premiums had begun immediately after the Date of Termination; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 15 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) all grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date Termination had Executive remained employed during such period will become immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation vested as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and and
(ivv) subject to Section 4(f)the specific approval of the Compensation Committee, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with Options that would have become vested (by lapse of time) within the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately 12-month period following the eighth day following the Executive’s delivery to the Company Date of a properly executed Release in accordance with Section 4(f) of this Agreement, Termination had Executive remained employed during such period will become immediately vested and (iii) Welfare Benefit Continuation exercisable as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, ; and
(vi) notwithstanding the provisions of any the applicable plan or agreement and subject to Section 4(f)Option agreement, equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period all of six months following Executive’s vested but unexercised Options as of the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance including those with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive accelerated vesting pursuant to the stock option or other equity award.
(dSection 8(b)(v) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(babove) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until will remain exercisable through the earlier to occur of (A) the 24 month anniversary original expiration date of the Date of Termination or Option, (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the 90th day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period or (C) 10 years from the date of grant of the options; and
(iiivii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(iv) To the extent not theretofore paid or provided, the Company shall will timely pay or provide to Executive his other benefits pursuant to the Executive and/or the Executive’s family the plans, policies, practices and programs under which such Other BenefitsBenefits are provided.
(vc) If the Executive’s employment is terminated within six months prior to a Change After or in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon Connection with a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:: Termination by Executive for Good Reason;
Appears in 4 contracts
Samples: Employment Agreement (American Safety Insurance Holdings LTD), Employment Agreement (American Safety Insurance Holdings LTD), Employment Agreement (American Safety Insurance Holdings LTD)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive If, other than for Good Reason. If, during the Employment a Protected Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for without Cause (and not due to death or Disability) or by the Executive for with Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant shall pay or provide to Executive the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive A lump sum cash payment consisting of: (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid; and (B) any annual bonus earned by Executive for a prior award period, but not yet paid to Executive (other than any portion of such annual bonus subject to a prior irrevocable deferral election under any deferred compensation arrangement subject to Section 409A of the Code, which portion shall instead be paid in accordance with the applicable deferral arrangement and any election thereunder) (the sum of the amounts described in clauses (A) and (B) shall be hereinafter referred to as the “Accrued Obligations”). The Accrued Obligations shall be paid to Executive within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until Subject to Section 8(e), an amount in cash equal to the earlier product of (A) 1.0 multiplied by (B) Executive’s Base Salary as in effect immediately prior to occur such termination, which amount shall be paid to Executive in three equal installments on each of (1) the date that is 55 days following the Date of Termination, (2) the date that is six months following the Date of Termination, and (3) the date that is 12 months following the Date of Termination.
(iii) Subject to Section 8(e), an amount in cash equal to the product of (A) the 24 month anniversary actual annual bonus that Executive would have earned (based upon actual performance) in respect of the fiscal year in which the Date of Termination occurs if Executive had remained employed with the Company and its affiliates through the time such bonuses are paid multiplied by (B) a fraction, the numerator of which is the number of days Executive was employed with the Company and its affiliates during such fiscal year and the denominator of which is the number of days in such fiscal year (the “Prorated Annual Bonus”), which amount shall be paid at the same time annual bonuses are paid to similarly situated executives of the Company; provided, however, that, if Executive has made an irrevocable election under any deferred compensation arrangement subject to Section 409A of the Code to defer any portion of the annual bonus for the fiscal year in which the Date of Termination occurs, then for all purposes of this Section 8 (including this Section 8(a)(iii) and Section 8(b)(iii)), such deferral election, and the terms of the applicable arrangement, shall apply to the same portion of the Prorated Annual Bonus and such portion shall be considered an Other Benefit (as defined below).
(iv) Subject to Section 8(e), an amount in cash equal to the product of (A) 1.67 multiplied by (B) the sum of (1) the excess of the monthly cost (as of the Date of Termination) to provide Executive and Executive’s dependents with continuation coverage under the health plan in which Executive was eligible to participate as of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended 1985 (“COBRA”). The COBRA continuation period shall begin ) over the monthly employee contribution paid by Executive for such coverage prior to the Date of Termination, plus (2) the monthly cost of providing Executive with coverage under the Company’s executive medical benefit program as of the Date of Termination, multiplied by (C) 12, with such amount to be paid on the 55th day following the end Date of the Welfare Benefit Continuation period provided in this Section 4(d)(ii)Termination.
(iiiv) Subject to Section 4(f8(e), notwithstanding reasonable outplacement services in an amount not to exceed $20,000; provided that such outplacement benefits shall end not later than the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms last day of the applicable plan or award agreement; provided, however, second calendar year that begins after the Executive may elect, and the Company will allow, the exercise Date of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardTermination.
(ivvi) To the extent not theretofore paid or provided, the Company shall timely pay or provide to Executive any other amounts or benefits required to be paid or provided or that Executive is eligible to receive under any plan, program, policy, practice, contract, or agreement of the Executive and/or Company and its affiliates through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
(b) If, during a Protected Period, Executive’s family employment is terminated by the Other BenefitsCompany without Cause (and not due to death or Disability) or by Executive with Good Reason, then the Company shall pay or provide to Executive the following:
(i) The Accrued Obligations, which shall be paid to Executive within 15 days following the Date of Termination.
(ii) Subject to Section 8(e), an amount in cash equal to the product of (A) 1.5 multiplied by (B) the sum of (1) Executive’s Base Salary as in effect immediately prior to such termination (or, if higher, as in effect immediately prior to the consummation of the applicable Change in Control) and (2) Executive’s Target Bonus as in effect immediately prior to such termination (or, if higher, as in effect immediately prior to the consummation of the applicable Change in Control), which amount shall be paid to Executive in a lump sum on the 55th day following the Date of Termination; provided that in the event the applicable Change in Control is not a “change in control event” within the meaning of Section 409A of the Code and the Treasury Regulations thereunder, then a portion of such amount equivalent to the amount that would have been payable to Executive under Section 8(a)(ii) upon a qualifying termination event thereunder shall (rather than be being paid on such 55th day) be paid on the same schedule as contemplated by Section 8(a)(ii).
(iii) Subject to Section 8(e) and the proviso set forth in Section 8(a)(iii), an amount in cash equal to the Prorated Annual Bonus; provided that such amount shall be determined based upon Executive’s Target Bonus as in effect immediately prior to the Date of Termination (or, if higher, as in effect immediately prior to the consummation of the applicable Change in Control), rather than actual performance, and shall be paid on the 55th day following the Date of Termination.
(iv) Subject to Section 8(e), an amount in cash equal to the product of (A) 1.67 multiplied by (B) the sum of (1) the excess of the monthly cost (as of the Date of Termination) to provide Executive and Executive’s dependents with continuation coverage under the health plan in which Executive was eligible to participate as of the Date of Termination under COBRA over the monthly employee contribution paid by Executive for such coverage prior to the Date of Termination, plus (2) the monthly cost of providing Executive with coverage under the Company’s executive medical benefit program as of the Date of Termination (or, if greater, as of immediately prior to the consummation of the applicable Change in Control), multiplied by (C) 18, with such amount to be paid on the 55th day following the Date of Termination.
(v) Subject to Section 8(e), reasonable outplacement services in an amount not to exceed $20,000; provided that such outplacement benefits shall end not later than the last day of the second calendar year that begins after the Date of Termination.
(vi) The Other Benefits, as set forth in Section 8(a)(vi).
(c) If the Executive’s employment is terminated within six months prior due to a Change in Control and the provisions of Section 4(d) applyExecutive’s death or Disability, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, then the Company shall paypay or provide Executive (or, no later than if applicable, Executive’s estate or beneficiaries) the first payroll date following such Change in ControlAccrued Obligations, additional payments the Prorated Annual Bonus, and provide additional benefits and vesting in order to provide the Executive Other Benefits, at the payments, benefits and vesting as time or times set forth in Section 4(dSections 8(a)(i). The post , 8(a)(iii), and 8(a)(vi), respectively, and shall have no other severance obligations under this Agreement.
(d) If the Term and Executive’s employment exercise period for stock options is terminated by the Company with Cause or by Executive without Good Reason, then the Company shall pay or provide Executive the Accrued Obligations and the Other Benefits, at the time or times set forth in Sections 8(a)(i) and 8(a)(vi), respectively, and shall have no other severance obligations under the Equity Documents shall be measured from the date of the Change in Controlthis Agreement.
(e) In additionAs a condition to the Company’s obligation to pay or provide the amounts or benefits set forth in Sections 8(a)(ii), upon 8(a)(iii), 8(a)(iv), 8(a)(v), 8(b)(ii), 8(b)(iii), 8(b)(iv), and 8(b)(v) Executive shall:
(i) Within 45 days following the Date of Termination, execute and deliver (and not subsequently revoke) a Change Separation and Release Agreement in Controlsubstantially the form attached hereto as Exhibit A.
(ii) Comply with Sections 11 and 12; provided that this Section 8(e)(ii) shall not apply during a Protected Period, if the it being understood that this proviso is simply a limitation of remedies and does not release Executive from Executive’s obligation to comply with Sections 11 and 12 during a Protected Period.
(f) Upon any termination of Executive’s employment with the Company for any reason, Executive shall promptly resign from any position as an officer, director, or fiduciary of the Company or any of its affiliates.
(g) Nothing in this Agreement shall prevent or limit Executive’s continuing or future participation in any plan, program, policy, or practice provided by the Company or its successoraffiliates and for which Executive may qualify. Notwithstanding the foregoing, if Executive receives payments and benefits pursuant to Section 8(a) continues following the Change in Controlor 8(b), Executive shall not be entitled to any outstanding equity awards that are not vested on the date severance pay or benefits under any severance plan, program, or policy of the Change Company and its affiliates, unless otherwise specifically provided therein in Control shall become vested and, as applicable, exercisable with respect a specific reference to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:.
Appears in 4 contracts
Samples: Executive Employment Agreement (Bankrate, Inc.), Executive Employment Agreement (Bankrate, Inc.), Executive Employment Agreement (Bankrate, Inc.)
Obligations of the Company Upon Termination. (a) Termination by During the Company Change in Control Employment Period for Cause Change --------------------------------------------------------------------- in Control Good Reason or by the Executive other than Other Than for Good ReasonCause, Death or Disability. If, during ------------------------------------------------------------------- the Employment Period, or any Additional Change in Control Employment Period, the Company shall terminate the Executive’s 's employment with the Company is terminated by the Company other than for Cause or by the Executive other than shall terminate employment for Change in Control Good Reason (and the Executive's employment is not due to terminated by reason of death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:):
(i) The Company shall pay to the Executive 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 sum product of (wx) the Executive’s Annual Base Salary earned Target 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 (x3) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), ) and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”)pay, which sum shall be paid within 15 days following the Date of Termination; and
(ii) in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the "Accrued Obligations"); and
(B) the amount equal to the product of (1) two and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Target Bonus or, if greater, the bonus pursuant to the Company's management bonus plan in the most recently completed fiscal year. The payments described in this Section 3(a)(i) shall be paid to the Executive in a lump sum in cash within 30 days after the Date of Termination unless the Executive elected to receive such payments in equal installments in accordance with the Company's usual payroll practices over the 24-month period following the Date of Termination. Such election may be made at any time prior to the Change in Control and may be amended or providedrevoked at the sole discretion of the Executive prior to the date of the Change in Control.
(ii) For 24 months after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall timely pay or provide continue Welfare Benefits to the Executive and/or the Executive’s family any other amounts or benefits required to be paid or provided or which 's family; provided, however, that if the Executive and/or the Executive’s family becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to this Agreement such plans, practices, programs and under any plan, program, policy or practice or contract or agreement of the Company (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held bypolicies, the Executive shall immediately vest in full be considered to have remained employed until 24 months after the Executive's Date of Termination and to have retired on the last day of such period;
(iii) All options acquired under the 1991 Stock Plan of Incyte Genomics, Inc. or any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled stock-based incentive plan of the Company which have not vested in accordance with the terms and conditions of the applicable plan grant, award or award agreement; providedpurchase, however, the Executive may elect, shall become 100% vested and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will all options shall continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture be exercisable for a period of six 12 months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and all Units shall become 100% vested and the Company will allow, the payment shares of common stock of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable Company shall be delivered to the Executive pursuant to within 30 days after the stock option or other equity award.Date of Termination;
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(iiv) The Company shall pay to shall, at its sole expense as incurred, provide the Executive (A) the Accrued Obligations within 15 days with outplacement services for a period of 12 months following the Date of Termination, the scope and provider of which shall be selected by the Executive in his sole discretion (B) subject to Sections 4(f) and 4(hthe "Outplacement Benefits"), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.; and
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(ivv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or any other amounts or benefits required to be paid or provided or which the Executive’s family Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 4 contracts
Samples: Employment Agreement (Incyte Genomics Inc), Employment Agreement (Incyte Genomics Inc), Employment Agreement (Incyte Genomics Inc)
Obligations of the Company Upon Termination. (a) 5.1 If by the Executive for Constructive Termination or by the Company Other Than for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, or any Additional Employment Period, the Company shall terminate the Executive’s 's employment with the Company is terminated by the Company other than for Cause or by Disability, or if the Executive other than shall terminate employment for Good Reason (and not due to death or Disability)Constructive Termination, the Company shall have no further payment Company's obligations to the Executive or his legal representatives under this Agreementshall be as follows:
(a) The Company shall, other than forwithin 30 business days of such termination of employment, pay the Executive a cash payment equal to the sum of the following amounts:
(i) to the extent not theretofore previously paid, the sum of (w) the Executive’s Annual Base Salary earned and any accrued paid time off through the Date Termination Date;
(ii) an amount equal to the product of Termination, (xi) the target Annual Bonus (as defined in Section 3.3(b)) for the fiscal year ending immediately prior to Performance Period which the Termination Date occurs multiplied by (ii) a fraction, the numerator of Terminationwhich is the number of days actually worked during such Performance Period, and the denominator is the total number of days included in the Performance Period; and
(yiii) compensation all amounts previously deferred by the Executive (under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through not yet paid by the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”)Company.
(b) Death or Disability prior toThe Company shall, or more than two years afterwithin 30 business days of such termination of employment, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to pay the Executive or his legal representatives under this Agreement, other than for (i) a cash payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the sum of the Executive’s current 's Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, Salary and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardPrior Year Annual Bonus.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for For a period of six months one (1) year following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entityDate, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income provide to the Executive and reported on Form W-2; provided, that in the event Executive's family welfare benefits which are at least as favorable as those provided under the most favorable Welfare Plans of the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(iiapplicable (i) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant and his family during the 90-day period immediately preceding the Termination Date, or (ii) with respect to other peer Executives and their families during the stock option or other equity award.
(iv) To the extent not theretofore paid or providedEmployment Period. In determining benefits under such Welfare Plans, the Company shall timely pay Executive's annual compensation attributable to base salary and incentives for any plan year or provide to the Executive and/or the Executive’s family the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested andcalendar year, as applicable, exercisable with respect shall be deemed to one-eighteenth of all such unvested equity awards on be not less than the one month anniversary Executive's Annual Base Salary and Prior Year Annual Bonus. The cost of the Change in Control and thereafter with respect to an additional one-eighteenth welfare benefits provided under this Section 5.1(c) shall not exceed the cost of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant benefits to the vesting rules stated above or in Executive immediately before the Equity Documents prior to Termination Date or, if less, the eighteen month anniversary of Effective Date. Notwithstanding the date of foregoing, if the Change in ControlExecutive obtains comparable coverage under any Welfare Plans sponsored by another employer, then the equity awards will become vested and, as applicable, exercisable in accordance with amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:other employer's Welfare
Appears in 4 contracts
Samples: Employment Continuity Agreement (Lendingtree Inc), Employment Continuity Agreement (Lendingtree Inc), Employment Continuity Agreement (Lendingtree Inc)
Obligations of the Company Upon Termination. (A) If, during the Protected Period, the Company involuntarily terminates Executive’s employment other than for Cause (excluding termination for death or Disability) or Executive voluntarily terminates employment for Good Reason and Executive executes a separation agreement substantially in the form attached hereto as Exhibit “A” (“Separation Agreement”) (which will include amongst its other terms an agreement by Executive to release and/or waive any and all existing claims he/she may have against the Company) that becomes effective and binding:
(1) the Company shall pay to Executive, within 30 days after the Date of Termination, or if later, within 5 days of the Separation Agreement signed by Executive becoming legally effective, the following:
(a) Termination a lump sum payment equal to Executive’s accrued, but unpaid base salary through the date of termination, less all applicable deductions;
(b) a lump sum payment equivalent to 2.99 times Executive’s final annual base salary, less all applicable deductions; and
(c) a lump sum payment equivalent to 2.99 times Executive’s annual performance bonus target as approved by the Compensation and Benefits Committee of EDS’ Board of Directors for the year in which he/she is terminated, less all applicable deductions.
(B) If Executive’s employment is involuntarily terminated for Cause, death or Disability during the Protected Period, the Company for Cause or by shall provide to Executive his/her accrued, but unpaid base salary through the date of termination, less all applicable deductions, and shall have no other severance and/or separation obligations to Executive pursuant to the terms of this Agreement. If Executive voluntarily terminates his/her employment during the Protected Period other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreementpay his/her accrued, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned but unpaid base salary through the Date date of Terminationtermination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon)less all applicable deductions, and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment other severance and/or separation obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(iiC) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans Notwithstanding any provision in this Agreement to the Executive and/or contrary, this Agreement will be interpreted, applied and to the Executive’s family at least equal minimum extent necessary, unilaterally amended by EDS, so that the Agreement does not fail to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies meet, and is operated in accordance with, the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end 409A of the Welfare Benefit Continuation period provided in this Section 4(d)(ii)Internal Revenue Code.
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 4 contracts
Samples: Change of Control Employment Agreement, Change of Control Employment Agreement (Electronic Data Systems Corp /De/), Change of Control Employment Agreement (Electronic Data Systems Corp /De/)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good ReasonTERMINATION FOR GOOD REASON OR OTHER THAN FOR CAUSE, DEATH OR DISABILITY. If, during the Employment Period, or any Additional Post-Change of Control Employment Period, the Company shall terminate the Executive’s 's employment with the Company is terminated by the Company other than for Cause or by Disability or the Executive other than shall terminate employment for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than forReason:
(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, the sum of (w2) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) 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 (z3) any accrued and unused vacation pay through 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 Executive's Annual Base Salary, calculated from the Date of Termination through the remainder of the Post-Change of Control Employment Period; PROVIDED, HOWEVER, 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 “Accrued Obligations”"CODE")) of any other amount of severance relating to salary or bonus continuation, which sum shall if any, to be paid within 15 days following received by the Date Executive upon termination of Terminationemployment of the Executive under any severance plan, policy or arrangement of the Company; and
(ii) any or all Stock Options awarded to the Executive under any plan not previously exercisable and vested shall become fully exercisable and vested; and
(iii) for the remainder of the Post-Change of Control 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) 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 Change of Control Date or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; PROVIDED, HOWEVER, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and
(iv) subject to the provisions 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 's family any other amounts or benefits required to be paid or provided or which the Executive and/or the Executive’s '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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change and its affiliated companies as in Control. Upon the Executive’s death or Disability effect and applicable generally to other peer executives and their families during the Employment Period90-day period immediately preceding the Change of Control Date or, or any Additional Employment Period, but prior to the occurrence of a Change in Control or if more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal favorable to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and effect generally thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time other peer executives of the Change in Control on each subsequent month anniversary of Company and its affiliated companies and their families (such other amounts and benefits shall be hereinafter referred to as the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:"OTHER BENEFITS").
Appears in 4 contracts
Samples: Executive Agreement (Atwood Oceanics Inc), Executive Agreement (Atwood Oceanics Inc), Executive Agreement (Atwood Oceanics Inc)
Obligations of the Company Upon Termination. (a) Termination by Upon the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the termination of Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than forany reason:
(i) the Company shall pay to Executive in a lump sum within thirty (30) days after the extent not theretofore paid, the sum of Termination Date (wA) the Executive’s Annual any Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any that has accrued interest or earnings thereon), but is unpaid and (zB) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Terminationreimbursable expenses that have been incurred but are unpaid; and
(ii) the Company shall provide any vested plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent not theretofore paid or provided, the provided in any such benefit plan in which Executive has participated as a 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 employee and excluding (except as hereinafter 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii4(c)) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (ivany Company severance pay program or policy) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of such plans.
(b) If Executive’s employment terminates on account of Executive’s death, Disability, termination by Executive without Good Reason, termination by the applicable plan Company for Cause, or award agreement; providedfailure by Executive to renew the Agreement, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect make no further payments to any outstanding stock option or Executive other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardthan those described in Section 4(a).
(c) Certain Terminations more than six months prior to, or more than two years after, If Executive’s employment terminates on account of a Change in Control termination by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for without Cause (and not due to Executive’s death or Disability) or ), a failure by the Company to renew the Agreement or a termination by Executive for Good Reason, and if Executive complies with the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable other provisions in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant then in addition to the terms and in the manner described, those payments described in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f4(a), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will shall be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior entitled to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash Receive an amount equal to two times the Executive’s then current Annual Base SalarySalary as in effect immediately preceding the Termination Date (or, if greater, Executive’s annual Base Salary as in effect immediately preceding any action by the Company described in Section 3(c) for which Executive terminated Executive’s employment for Good Reason) for a period of twenty-four (24) months, such sum period to commence immediately following the Termination Date, to be paid on in equal monthly or more frequent installments as are customary under the next Company’s payroll date immediately following practices from time to time (collectively, the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.“Severance Payment”); and
(ii) Until Receive Executive’s Annual Bonus for any completed calendar year, to the earlier to occur of (A) the 24 month anniversary extent earned for such year and unpaid as of the Date of Termination or Date; and
(Biii) the Continue any health care (medical, dental and vision) plan coverage provided to Executive and Executive’s acceptance spouse and dependents at the time of full-time employment with another entitythe Termination Date for one (1) month after the Termination Date, on the same basis and at the same cost to Executive as available to similarly situated active employees of the Company during such period, provided Executive and Executive’s spouse and dependents are eligible for such continuation coverage as of the Termination Date. If Executive and Executive’s spouse and dependents are eligible for such coverage as of the Termination date but the Company reasonably determines that maintaining such coverage for Executive or Executive’s spouse or dependents is not practicable under the terms and provisions of such plans and programs (or where such continuation would adversely affect the tax status of the plan or program pursuant to which the coverage is provided), the Company shall continue benefits provided under Welfare Plans pay Executive cash payments equal to the Executive and/or estimated cost of the Executive’s family at least equal expected Company contribution therefor for such same period of time, with such payments to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end established payroll practices of the Welfare Benefit Continuation Company (no less frequently than monthly) for the period provided in this Section 4(d)(ii)during which such cash payments are to be provided.
(iiid) Subject Notwithstanding any other provision of this Agreement, Executive’s right to receive any payments under Section 4(f4(c) of this Agreement is contingent upon and subject to Executive signing and delivering to the Company a complete general release of all claims against the Company and its Affiliates in a form acceptable to the Company (the “Release”), notwithstanding and allowing the provisions applicable revocation period required by law to expire without revoking or causing revocation of any applicable plan or agreementsame, all equity awards granted by within the Company tosixty (60) days following the Termination Date. Any payments to be made, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may benefits to be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise under Section 4(c) of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable this Agreement prior to the Executive pursuant date the Release becomes effective and irrevocable shall be accumulated and paid, or, as to the stock option or other equity award.
(iv) To the extent not theretofore paid or providedbenefits, the Company shall timely pay or provide to the Executive and/or the provided at Executive’s family the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to cost and reimbursed, in a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than lump sum on the first payroll date following such Change in Controloccurring after the Release becomes effective and irrevocable, additional payments except that, if the sixty (60) days for Executive to deliver the signed Release to the Company and provide additional benefits and vesting in order the revocation period thereunder to provide expire without Executive having elected to revoke the Executive the paymentsRelease, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date spans more than one calendar year, none of the Change in Controlpayments or reimbursements under Section 4(c) of this Agreement can commence until the subsequent calendar year.
(e) In addition, upon If Executive holds any other office with the Company or one of its Affiliates (other than as a Change in Control, if member of the Company’s Board of Directors) and Executive’s employment with the Company terminates for any reason whatsoever, Executive shall immediately resign from any such office (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date other than as a member of the Change in Control shall become vested andCompany’s Board of Directors), effective as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:Termination Date.
Appears in 3 contracts
Samples: Employment Agreement (Key Mining Corp.), Employment Agreement (Key Mining Corp.), Employment Agreement (Key Mining Corp.)
Obligations of the Company Upon Termination. (a) 5.1 If by the Executive for Constructive Termination or by the Company Other Than for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, or any Additional Employment Period, the Company shall terminate the Executive’s 's employment with the Company is terminated by the Company other than for Cause or by Disability, or if the Executive other than shall terminate employment for Good Reason (and not due to death or Disability)Constructive Termination, the Company shall have no further payment Company's obligations to the Executive or his legal representatives under this Agreementshall be as follows:
(a) The Company shall, other than forwithin 30 business days of such termination of employment, pay the Executive a cash payment equal to the sum of the following amounts:
(i) to the extent not theretofore previously paid, the sum of (w) the Executive’s Annual Base Salary earned and any accrued paid time off through the Date Termination Date;
(ii) an amount equal to the product of Termination, (xi) the target Annual Bonus (as defined in Section 3.3(b)) for the fiscal year ending immediately prior to Performance Period in which the Termination Date occurs multiplied by (ii) a fraction, the numerator of Terminationwhich is the number of days actually worked during such Performance Period, and the denominator is the total number of days included in the Performance Period; and
(yiii) compensation all amounts previously deferred by the Executive (under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through not yet paid by the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”)Company.
(b) Death or Disability prior toThe Company shall, or more than within 30 business days of such termination of employment, pay the Executive a cash payment equal to two years after, a Change in Control. Upon (2) times the sum of the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current 's Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, Salary and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardPrior Year Annual Bonus.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for For a period of six months two (2) years following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entityDate, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income provide to the Executive and reported on Form W-2; provided, that in the event Executive's family welfare benefits which are at least as favorable as those provided under the most favorable Welfare Plans of the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(iiapplicable (i) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant and his family during the 90-day period immediately preceding the Termination Date, or (ii) with respect to other peer Executives and their families during the stock option or other equity award.
(iv) To the extent not theretofore paid or providedEmployment Period. In determining benefits under such Welfare Plans, the Company shall timely pay Executive's annual compensation attributable to base salary and incentives for any plan year or provide to the Executive and/or the Executive’s family the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested andcalendar year, as applicable, exercisable with respect shall be deemed to one-eighteenth of all such unvested equity awards on be not less than the one month anniversary Executive's Annual Base Salary and Prior Year Annual Bonus. The cost of the Change in Control and thereafter with respect to an additional one-eighteenth welfare benefits provided under this Section 5.1(c) shall not exceed the cost of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant benefits to the vesting rules stated above or in Executive immediately before the Equity Documents prior to Termination Date or, if less, the eighteen month anniversary of Effective Date. Notwithstanding the date of foregoing, if the Change in ControlExecutive obtains comparable coverage under any Welfare Plans sponsored by another employer, then the equity awards will become vested and, as applicable, exercisable in accordance with amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:other employer's Welfare
Appears in 3 contracts
Samples: Employment Continuity Agreement (Lendingtree Inc), Employment Continuity Agreement (Lendingtree Inc), Employment Continuity Agreement (Lendingtree Inc)
Obligations of the Company Upon Termination. (a) Prior to or More than 24 Months after a Change in Control: Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or by the Executive other than for Good ReasonDisability; Expiration of Executive’s Employment Period. If, prior to or more than 24 months after a Change in Control and during the Employment Period, or any Additional Executive’s Employment Period, the Company terminates Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Poor Performance, Cause or Disability, or Executive terminates his employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, or upon the expiration of the Executive’s Employment Period, as described in Section 3, then, subject to Section 8(f) below (and not due to death or Disability), the Company shall have no further payment obligations with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive or his legal representatives under this Agreement, other than for:executes a Release in substantially the form of Exhibit A hereto and the period for revoking such Release (the “Release”) has expired before the 30th day after the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment) the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (wA) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (zB) any accrued and unused vacation pay through the Date of Termination (will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), which sum shall the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly or other installments (not less frequently than monthly) as are customary under the Company’s payroll practices from time to time, with the installments that otherwise would be paid within 15 the first 30 days following after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; with Executive being required to pay the amount of such premiums for the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the premiums had begun immediately after the Date of Termination; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) on the 30th day after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum in cash an amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(iivi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(a)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, (B) the 90th day following the end of the Normal Severance Period or (C) 10 years from the date of grant of the options; and
(viii) to the extent not theretofore paid or provided, the Company shall will 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 his Other Benefits pursuant to this Agreement the plans, policies, practices and programs under any plan, program, policy or practice or contract or agreement of the Company (“which such Other Benefits”)Benefits are provided.
(b) Death Prior to or Disability prior to, or more More than two years after, 24 Months after a Change in Control: Termination by the Company for Poor Performance. Upon the Executive’s death or Disability during the Employment PeriodIf, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years 24 months after the occurrence of a Change in Control, the Company shall have terminates Executive’s employment for Poor Performance, then, subject to Section 8(f) below (and with respect to the payments and benefits described in clauses (ii) through (vi) below, only if Executive executes the Release and the period for revoking such Release expires before the 30th day after the Date of Termination):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination (with Executive not having any right to designate the taxable year of the payment); and
(ii) for a period of 12 months after the Date of Termination (the “Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal semi-monthly installments or other installments (not less frequently than monthly) as are customary under the Company’s payroll practices from time to time, with the installments that otherwise would be paid within the first 30 days after the Date of Termination being paid in a lump sum on the 30th day after the Date of Termination and the remaining installments being paid as otherwise scheduled assuming payments had begun immediately after the Date of Termination; provided, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage and such coverage remains available, the Company no further payment obligations less frequently than monthly will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive or his legal representatives under this Agreement, other than equal to the full premium amount; with Executive being required to pay the amount of such premiums for (i) the first 30 days after the Date of Termination and having the right to reimbursement from the Company on the 30th day after the Date of Termination for the payments made during that time and the balance of the premiums being paid as otherwise scheduled assuming payment of the Accrued Obligations premiums had begun immediately after the Date of Termination; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 15 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) all grants of Restricted Stock held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 12-month period following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date Termination had Executive remained employed during such period will become immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation vested as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and and
(ivv) subject to Section 4(f)the specific approval of the Compensation Committee, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with Options that would have become vested (by lapse of time) within the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately 12-month period following the eighth day following the Executive’s delivery to the Company Date of a properly executed Release in accordance with Section 4(f) of this Agreement, Termination had Executive remained employed during such period will become immediately vested and (iii) Welfare Benefit Continuation exercisable as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, ; and
(vi) notwithstanding the provisions of any the applicable plan or agreement and subject to Section 4(f)Option agreement, equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period all of six months following Executive’s vested but unexercised Options as of the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance including those with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive accelerated vesting pursuant to the stock option or other equity award.
(dSection 8(b)(v) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(babove) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until will remain exercisable through the earlier to occur of (A) the 24 month anniversary original expiration date of the Date of Termination or Option, (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the 90th day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period or (C) 10 years from the date of grant of the options; and
(iiivii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(iv) To the extent not theretofore paid or provided, the Company shall will timely pay or provide to Executive his Other Benefits pursuant to the Executive and/or the Executive’s family the plans, policies, practices and programs under which such Other BenefitsBenefits are provided.
(vc) If the Executive’s employment is terminated within six months prior to a Change After or in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon Connection with a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:: Termination by Executive for Good Reason;
Appears in 3 contracts
Samples: Employment Agreement (American Safety Insurance Holdings LTD), Employment Agreement (American Safety Insurance Holdings LTD), Employment Agreement (American Safety Insurance Holdings LTD)
Obligations of the Company Upon Termination. (a) Termination by By the Company Other Than for Cause Cause, Death or by Disability; By the Executive other than for Good Reason. IfSubject to Section 5, if, during the Employment Period, or any Additional Employment Period, (x) the Company shall terminate the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to Cause, death or Disability), the Company shall have no further payment obligations to Disability or (y) the Executive or his legal representatives under this Agreement, other than forshall terminate employment for Good Reason:
(i) the Company shall pay to the extent not theretofore paid, Executive the following amounts:
(A) a lump sum cash payment within 30 days after the Date of Termination equal to the aggregate of the following amounts: (w1) the Executive’s Annual Base Salary earned and vacation pay through the Date of Termination, (x2) the Executive’s accrued Annual Bonus for the fiscal year ending 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 TerminationTermination in accordance with the applicable Company policy, in the case of each of clauses (y1) compensation previously deferred by the Executive through (together with any accrued interest or earnings thereon3), and to the extent not previously paid (zthe sum of the amounts described in clauses (1) any accrued and unused vacation pay through the Date of Termination (3) shall be hereinafter referred to as the “Accrued Obligations”); and
(B) subject to 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 delivered to the Company not later than 22 days after the Date of Termination (or such longer period of time permitted by the Company, but in no event later than the latest business day that is not more than two months after the end of the calendar year in which the Date of Termination occurs) (the “Release Deadline”), an amount equal to the sum shall be paid of (x) the product of two times the Executive’s Annual Base Salary, plus (y) the product of 0.75 times the Executive’s Target Bonus as in effect for the fiscal year of the Company in which the Date of Termination occurs, payable in a lump sum within 15 30 days following after the Date of Termination; and
(ii) if the Executive makes a timely election to receive COBRA coverage under Section 4980B of the Code, the Company will pay the cost of such coverage during the period it remains in effect, not to exceed 18 months following the Date of Termination (the benefits provided pursuant to this Section 4(a)(ii), the “Post-Employment Health Care Benefits”);
(iii) if the Date of Termination occurs on or after the second anniversary of the Effective Date, all remaining unvested Retention Options will vest. If the Date of Termination occurs prior to the second anniversary of the Effective Date, a number of the unvested Retention Options will vest equal to the sum of (i) 1/3 of the total number of Retention Options plus (ii) a number of Retention Options equal to 1/3 of the total number of Retention Options multiplied by a fraction, the numerator of which is the number of days from the latest anniversary of the Effective Date through the date of termination, and the denominator of which is 365. Any Retention Options which are not vested as of the Date of Termination (after application of this Section 4(a)(iii)) shall terminate immediately upon the Date of Termination. The Executive shall have one year following the Date of Termination to exercise any Retention Options that are vested as of the Date of Termination (after application of this Section 4(a)(iii)).
(iv) unvested equity-based awards held by the Executive on the Date of Termination other than the Retention Options shall be treated in a manner similar to and consistent with that described in the preceding Section 4(a)(iii) with respect to the Retention Options (i.e., pro-rata vesting for open vesting periods, based on service performed during the period plus one year and, for stock options, a one-year post-termination exercise period); provided that (A) any applicable performance conditions will continue to apply and be tested on the Date of Termination, and (B) if the terms of any individual equity-based award are more generous to the Executive than described in this Section 4(a)(iv), then such more generous terms shall apply. The benefits provided pursuant to this Section 4(a)(iv) and Section 4(a)(iii) (in the aggregate, the “Equity Award Vesting Benefits”) shall be subject to the Executive’s delivery of an executed Release prior to the Release Deadline (and non-revocation thereof); and
(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 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 through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
. Notwithstanding the foregoing provisions of Section 4(a)(i), in the event that the Executive is a “specified employee” (bwithin 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) Death (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 Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability provided under Section 4(a)(i) during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days six-month period immediately following the Date of TerminationTermination shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) and Other Benefits; of the Code (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary“Interest”), payable on the next payroll first business day after the date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company that is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards409A Payment Date”). If a Change in Control occurs during such six month period For the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month periodavoidance of doubt, the Unvested Equity Awards will parties hereto acknowledge that the severance payments and benefits described in this Agreement are intended to be forfeited immediately following such six month period. The Executive may elect, and exempt from the Company will allow, the payment operation of Section 409A of the exercise price of any outstanding vested stock options, Code and not “deferred compensation” within the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions meaning of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:409A.
Appears in 3 contracts
Samples: Employment Agreement (Sunrise Senior Living Inc), Employment Agreement (Sunrise Senior Living Inc), Employment Agreement (Sunrise Senior Living Inc)
Obligations of the Company Upon Termination. (a) Termination by Good Reason; Other Than for Cause, Death or Disability. If, ------------------------------------------------------ during the Employment Period, the Company shall terminate the Officer's employment other than for Cause or by Disability or the Executive other than Officer shall terminate employment for Good Reason, the parties acknowledge that the Officer will sustain actual damages, the amount of which is indefinite, uncertain and difficult of exact ascertainment because of the uncertainties of successfully relocating and seeking a comparable position. In order to avoid dispute as to the amount of such damages and the mutual expense and inconvenience such dispute would entail, the Company and the Officer have agreed hereby that the Company shall pay to the Officer compensation as provided below. It is hereby agreed that in the event of such termination by the Company, the Officer shall receive such amounts as herein provided, not as a penalty, but as the Officer's agreed compensation and sole damages for the termination of this Agreement, in lieu of the Officer's proof of his actual damages on that account. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by shall terminate the Company Officer's employment other than for Cause or by Disability or the Executive other than Officer shall terminate employment for Good Reason (and not due to death or Disability)Reason, the Company shall have no further payment obligations pay to the Executive or his legal representatives under this Agreement, other than forOfficer in a lump sum in cash within 5 days after the Date of Termination the aggregate of the following amounts:
(ia) the sum of (1) the Officer's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the sum product of (wx) the Executive’s higher of (I) the Recent Annual Base Salary Bonus and (II) the Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than 12 full months or during which the Officer was employed for less than 12 full months), for the 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 (x3) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) any compensation previously deferred by the Executive Officer (together with any accrued interest or earnings thereon), ) and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”)pay, which sum shall be paid within 15 days following the Date of Termination; and
(ii) in each case 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 sum of the Company amounts described in clauses (“Other Benefits”1)., (2), and (3) shall be hereinafter referred to as the "Accrued Obligations"); and
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current product of (1) three and (2) the sum of (x) the Officer's Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; Salary and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (iy) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Highest Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of TerminationBonus. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or Officer any other amounts or benefits required to be paid or provided or which the Executive’s family Officer is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d"). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change any options to purchase shares of the Company's common stock shall immediately vest and become exercisable as of the Date of Termination and, notwithstanding anything to the contrary in Control, if the Executive’s employment Officer's option agreements with the Company Company, the options shall be exercisable for a period of 12 months after the Date of Termination (or its successor) continues following but in no event beyond the Change in Control, any outstanding equity awards that are not vested expiration date applicable to such options). Any restrictions on the date of the Change in Control restricted stock grants and performance share grants shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will also be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:eliminated.
Appears in 2 contracts
Samples: Change of Control Employment Agreement (Basin Exploration Inc), Change of Control Employment Agreement (Basin Exploration Inc)
Obligations of the Company Upon Termination. (a) 5.1 If by the Executive for Constructive Termination or by the Company Other Than for Cause or by the Executive other than for Good ReasonDisability. If, during the Employment Period, or any Additional Employment Period, the Company shall terminate the Executive’s 's employment with the Company is terminated by the Company other than for Cause or by Disability, or if the Executive other than shall terminate employment for Good Reason (and not due to death or Disability)Constructive Termination, the Company shall have no further payment Company's obligations to the Executive or his legal representatives under this Agreementshall be as follows:
(a) The Company shall, other than forwithin thirty business days of such termination of employment, pay the Executive a cash payment equal to the sum of the following amounts:
(i) to the extent not theretofore previously paid, the sum of (w) the Executive’s Annual Base Salary earned and any accrued paid time off through the Date Termination Date;
(ii) an amount equal to the product of Termination, (xi) the Annual Bonus (as defined in Section 3.2(b)) for the fiscal year ending immediately prior Performance Period in which the Termination Date occurs multiplied by (ii) a fraction, the numerator of which is the number of days actually worked during such Performance Period, and the denominator of which is 365; or, if greater, the amount of any Annual Incentive paid or payable to the Executive with respect to the Performance Period for the year in which the Termination Date of Termination, occurs; and
(yiii) compensation all amounts previously deferred by the Executive (under any nonqualified deferred compensation plan sponsored by the Company, together with any accrued interest or earnings thereon, and not yet paid by the Company.
(b) The Company shall, within thirty business days of such termination of employment, pay the Executive a cash payment equal to three (3) times the sum of the Executive's Annual Base Salary and the Severance Incentive.
(c) On the Termination Date, the Executive shall become fully vested in any and all stock incentive awards granted to the Executive under any Plan which have not become exercisable as of the Termination Date and all stock options (including options vested as of the Termination Date) shall remain exercisable until the applicable option expiration date. All forfeiture conditions that as of the Termination Date are applicable to any deferred stock unit, restricted stock or restricted share units awarded to the Executive by the Company pursuant to the LTIP, a successor plan or otherwise shall lapse immediately.
(d) Except as provided in subsections (e) and (f), and during the Employment Period (z) or until such later date as any accrued and unused vacation pay through Welfare Plan of the Date of Termination (the “Accrued Obligations”Company may specify), which sum shall be paid within 15 days following the Date of Termination; and
(ii) to the extent not theretofore paid or provided, the Company shall timely pay or continue to provide to the Executive and the Executive's family welfare benefits (including, without limitation, disability, individual life and group life insurance benefits, but excluding medical or other health plans) which are at least as favorable as those provided under the most favorable Welfare Plans of the Company applicable (i) with respect to the Executive and his or her family during the 90-day period immediately preceding the Termination Date, or (ii) with respect to other peer executives and their families during the Employment Period. In determining benefits under such Welfare Plans, the Executive's annual compensation attributable to base salary and incentives for any plan year or calendar year, as applicable, shall be deemed to be not less than the Executive's Annual Base Salary and Annual Incentive. The cost of the welfare benefits provided under this Section 5.1(d) shall not exceed the cost of such benefits to the Executive immediately before the Termination Date or, if less, the Effective Date. Notwithstanding the foregoing, if the Executive obtains comparable coverage under any Welfare Plans sponsored by another employer, then the amount of coverage required to be provided by the Company hereunder shall be reduced by the amount of coverage provided by such other employer's Welfare Plans.
(e) If the Executive elects to convert any group term life insurance to an individual policy, the Company shall pay all premiums for 12 months and the Executive shall cease to participate in the Company's group term life insurance.
(f) The Executive's eligibility for any retiree medical coverage shall be determined under the relevant plan, with additional age or service credited provided in the Executive's employment agreement, if any. The Executive's rights under this Section shall be in addition to and not in lieu of any post-termination continuation coverage or conversion rights the Executive may have pursuant to applicable law, including, without limitation, continuation coverage required by Section 4980B of the Code ("COBRA Continuation Coverage"). If the Executive is not eligible for retiree medical coverage and elects to receive COBRA Continuation Coverage, the Company shall pay all of the required premiums for the Executive and/or the Executive’s 's family for 12 months after the Termination Date. For purposes of determining eligibility for and the time of commencement of retiree benefits under any other amounts or benefits required Welfare Plans of the Company, the Executive's credited service shall be the Executive's credited service at the Termination Date plus five years and the Executive's age shall be deemed to be paid the Executive's age at the Termination Date plus five years. If the Executive is eligible for additional credited service or deemed age under an employment agreement or other contract with the Company, the additional service and age provided by this Section 5.1(f) shall be in addition to any service and/or age credit provided under an employment agreement or contract.
(g) The Executive shall be fully vested in the Company's Executive Supplemental Retirement Plan and Benefit Restoration Plan or any successor or replacement plans (the "Supplemental Plans"). For purposes of the Supplemental Plans, the Executive's credited service shall be the Executive's credited service at the Termination Date plus five years and the Executive's age shall be deemed to be the Executive's age at the Termination Date plus five years. The amount payable under Section 5.1(b) of this Agreement shall be taken into account for purposes of determining the amount of benefits to which the Executive and/or is entitled under the Executive’s family Supplemental Plans as though the amount was earned equally over the Employment Period. If the Executive is eligible for additional credited service or deemed age under an employment agreement or other contract with the Company, the additional service and age provided by this Section 5.1(g) shall be in addition to receive pursuant to this Agreement and any service and/or age credit provided under any plan, program, policy an employment agreement or practice or contract or agreement of the Company (“Other Benefits”)contract.
(bh) Death or Disability prior toThe Company shall, or more than two years afterat its sole expense, a Change as incurred, pay on behalf of Executive up to $25,000 in Control. Upon fees and costs charged by nationally recognized outplacement firm selected by the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior Executive to the occurrence of a Change in Control or more than two years provide outplacement service for one year after the occurrence of a Change in ControlTermination Date.
(i) For the period stated below, the Company shall have no further payment obligations continue to pay all premiums on the Executive's whole life insurance policy (the "Policy") issued under the Executive or his legal representatives Life Insurance Program. The payments under this Agreement, other than for (iSection 5.1(i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release are in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price lieu of any outstanding stock options, and the satisfaction of any required tax withholding payments under Section 5.1(d) with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month periodPolicy. The Executive may elect, and premium payments shall be made until the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicableearlier of:
(i) The Company shall pay to the Executive (A) fifth anniversary of the Accrued Obligations within 15 days following the Date of TerminationTermination Date, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.or
(ii) Until the earlier later to occur of (A) the 24 month tenth anniversary of the Date of Termination Policy or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii)reaching age 64.
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 2 contracts
Samples: Employment Continuity Agreement (Dominion Resources Inc /Va/), Employment Continuity Agreement (Virginia Electric & Power Co)
Obligations of the Company Upon Termination. (a) Termination by By the Company Other Than for Cause Cause, Death or by Disability; By the Executive other than for Good Reason. IfSubject to Section 5 of this Agreement, if, during the Employment Period, or any Additional Employment Period, (x) the Company terminates the Executive’s employment other than for Cause, death or Disability or (y) the Executive terminates employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than forReason:
(i) the Company shall pay to the extent not theretofore paid, Executive the following amounts:
(A) a lump sum cash payment within thirty (30) days following the Date of Termination equal to the aggregate of the following amounts: (w1) the Executive’s Annual Base Salary and vacation pay accrued through the Date of Termination; (2) any Annual Bonus earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs (other than any portion of such Annual Bonus that was previously deferred, which portion shall instead be paid in accordance with the applicable deferral election); and (3) the Executive’s business expenses that have not been reimbursed by the Company as of the Date of Termination and were incurred by the Executive prior to the Date of Termination in accordance with the applicable Company policy, in the case of each of clauses (1), (2), and (3), to the extent not previously paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the “Accrued Obligations”);
(B) subject to the Executive’s delivery (and non-revocation) of an executed release of claims against the Company and the Partnership, and their respective officers, directors, employees and affiliates, in substantially the form attached hereto as Exhibit A (the “Release”), which Release must be delivered to the Company not later than forty-five (45) calendar days after the Date of Termination, and not revoked (as to the waiver of age discrimination claims contained therein) in accordance with the terms thereof, continuation of the Annual Base Salary as of the Date of Termination (disregarding any reduction in Annual Base Salary that constitutes Good Reason), payable in accordance with the Company’s regular payroll practices, for two years following the Date of Termination; provided that each such payment shall be increased by an amount equal to (i) two times the greater of (x) the current Target Bonus and (y) the average of the Annual Bonus actually received by the Executive in the prior two (2) fiscal years (including, but not limited to, any portion of the Annual Bonus paid in the form of Equity Awards) (the greater of (x) and (y), the “Relevant Bonus Amount”), divided by (ii) the number of Annual Base Salary payments during such two-year period; further provided that such payments shall commence on the first regular payroll date which is sixty (60) or more days following the Date of Termination, with such first payment including any amount which would have been paid on any regular payroll date following the Date of Termination and prior to such first payment; and
(C) a lump sum cash payment within thirty (30) days following the Date of Termination equal to the product of (a) the Relevant Bonus Amount and (b) a fraction, the numerator of which is the number of days elapsed in the fiscal year through the Date of Termination, and the denominator of which is 365 (xthe “Pro-Rata Bonus”).
(ii) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred any then-unvested compensatory equity awards held by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date shall immediately vest as of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; andprovided that, for clarity, “equity awards” for this purpose shall not include the “Contingent Consideration” (as defined in the Merger Agreement), the terms of which are fully incorporated in the Merger Agreement.
(iiiii) 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 through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 2 contracts
Samples: Employment Agreement (Cole Credit Property Trust III, Inc.), Employment Agreement (Cole Credit Property Trust III, Inc.)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 2 contracts
Samples: Employment Agreement (Reata Pharmaceuticals Inc), Employment Agreement (Reata Pharmaceuticals Inc)
Obligations of the Company Upon Termination. (a) Termination by By the Company Other Than for Cause Cause; or by By the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, Company terminates the Executive’s employment with the Company is terminated by the Company for any reason under this Agreement (other than for Cause (and not due to death or DisabilityCause) or by the Executive terminates employment under this Agreement for Good Reason, :
(1) the Executive will shall be entitled to (i) continued payment for eighteen (18) months after the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to Date of Termination of the Executive’s then current Annual Base Salary, payable base salary (as in effect on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held and (ii) a bonus equal to the average of the annual bonuses earned by the Executive that otherwise would have been forfeited will continue to remain outstandingover the three complete years (or if less than three years, unvested (and will not continue vestingthe average bonus earned during such shorter period) and subject to forfeiture for a period of six months following preceding the Date of Termination (such equity awardsthat is, not including the “Unvested Equity Awards”). If a Change in Control occurs during such six bonus year that includes the Date of Termination) to be paid on the first business day at the conclusion of the eighteen month period after the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment Date of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.Termination; and
(d2) Certain Terminations within six months prior to, or within two years following, a Change in Control. In for the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to twelve (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(beighteen (18) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days month period following the Date of Termination, the Executive will receive a waiver of the applicable premium otherwise payable for COBRA continuation coverage for the Executive, his spouse and eligible dependents (Bto the extent covered on the Date of Termination) subject for health, prescription, dental and vision benefits; provided, however, that to Sections 4(fthe extent COBRA continuation coverage eligibility expires (unless such expiration is due to eligibility for other group health insurance or Medicare) and 4(h)before the end of such twelve month period, a lump sum cash the Executive will receive payment, on an after-tax basis, of an amount equal to two times the Executive’s then current Annual Base Salary, such sum premium the Company would have otherwise waived for COBRA coverage. The obligations of the Company to be paid provide benefits under this Section 5(a)(2) shall terminate on the next payroll date immediately following of occurrence of the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier first to occur of (A) the 24 month anniversary any of the Date following, if any of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans following should occur prior to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
twelve (iiieighteen (18) Subject to Section 4(f), notwithstanding ) month period: (i) the provisions date of commencement of eligibility of the Executive under the group health plan of any applicable plan other employer or agreement, all equity awards granted by (ii) the Company to, or otherwise held bydate of commencement of eligibility of the Executive for Medicare benefits. In addition, the Executive shall immediately vest in full and be entitled to receive executive level outplacement assistance under any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled outplacement assistance program then being maintained by the Company in accordance with the terms of any such program. The Executive shall also become vested in any outstanding options, restricted stock or other equity incentive awards only to the applicable plan extent provided for under the terms governing such equity incentive award. The Company shall also pay, or award agreement; providedcause to be paid, howeverto the Executive, in a lump sum in cash within 30 days after the Date of Termination (or, in the case of the pro-rated Annual Bonus Amount, at the time such bonus would otherwise be paid), the Executive may electExecutive’s accrued but unpaid cash compensation (the “Accrued Obligations”), which shall include but not be limited to, (W) the Executive’s Base salary through the Date of Termination that has not yet been paid (X) an amount representing a 100% target bonus for the Executive’s salary grade for the year of termination, multiplied by a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the Company will allowdenominator of which is 365 (the “Annual Bonus Amount”), the exercise of (Y) any outstanding stock optionsaccrued but unpaid vacation or PTO pay, and the satisfaction of any required tax withholding with respect (Z) similar unpaid items that have accrued and as to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to which the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting has become entitled as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In additionDate of Termination, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control including declared but unpaid bonuses and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Controlunreimbursed employee business expenses; provided, however, that if 100% the Company’s obligation to make any payments, or cause any payments to be made, under this paragraph (a) to the extent any such payment shall not have accrued as of the equity awards would otherwise become vested pursuant day before the Date of Termination shall also be conditioned upon the Executive’s execution, and non-revocation, of a written release, substantially in the form attached hereto as Exhibit 1, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment under this Agreement or the termination thereof (other than any entitlements under the terms of this Agreement to indemnification or under any other plans or programs of the Company in which the Executive participated and under which the Executive has accrued and is due a benefit). If any payment, compensation or other benefit provided to the vesting rules stated above Executive in connection with his employment termination is determined, in whole or in part, to constitute “nonqualified deferred compensation” within the Equity Documents prior meaning of Section 409A of the Code and the Executive is a specified employee as defined in Section 409A(a)(2)(B)(i) and Income Tax Regulations under Section 409A, no part of such payments shall be paid before the day that is six (6) months plus one (1) day after the Date of Termination (the “New Payment Date”). The aggregate of any payments that otherwise would have been paid to the eighteen month anniversary Executive during the period between the termination date and the New Payment Date shall be paid to the Executive, without interest, in a lump sum on such New Payment Date. Thereafter, any payments that remain outstanding as of the date of day immediately following the Change in ControlNew Payment Date shall be paid without delay over the time period originally scheduled, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes the terms of this Agreement, “Change in Control” means the occurrence of any of the following events:.
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (PharMerica CORP)
Obligations of the Company Upon Termination. (a) Termination by the Company for without Cause or Termination by the Executive for Good Reason prior to January 5, 2005. If the Company terminates the Executive other than for Cause, or other than in connection with death or Disability as covered by Section 4(c) below or if the Executive terminates his employment for Good Reason. If, during the Employment Periodin each case prior to January 5, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability)2005, the Company shall have no further payment obligations (i) pay to the Executive or his legal representatives all Accrued Benefits (as hereinafter defined) in a lump sum in cash within ten (10) days after the Date of Termination and (ii) permit Executive and/or Executive’s family, as applicable, to continue to participate in, and be entitled to receive benefits under, all medical, prescription, dental, and vision plans of the Company, and/or, at the Company’s option, reimburse the Executive for all COBRA payments incurred by him, for a period of eighteen (18) months following such Date of Termination, in each case to the extent applicable to Executive at such Date of Termination. For the avoidance of doubt, in the event Executive is terminated under the circumstances described in the preceding sentence the Executive will not be entitled to receive an Annual Bonus for the fiscal year ended September 30, 2005. For purposes of this Agreement, other than for:
“Accrued Benefits” shall mean (i) all Base Salary earned or accrued through the Date of Termination to the extent not theretofore paid, (ii) all amounts payable to Executive pursuant to Section 2(b)(ix) that are accrued through the sum Date of Termination hereof to the extent not theretofore paid, (wiii) reimbursement for any and all monies advanced in connection with the Executive’s Annual Base Salary earned employment for reasonable expenses incurred by the Executive in accordance with Section 2(b)(vii) or 2(b)(x) hereof through the Date of Termination, and (xiv) all other payments and benefits to which the Bonus for Executive or the fiscal year ending immediately prior to Executive’s family or other beneficiaries may be entitled under the Date terms of Terminationany applicable compensation arrangement, (y) benefit plan, program or policy of the Company, including any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon)) and not yet paid by the Company and any earned and accrued, and (z) any accrued and but unused vacation pay pay, in each case through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 2 contracts
Samples: Executive Employment Agreement (Activant Solutions Inc /De/), Executive Employment Agreement (Activant Solutions Inc /De/)
Obligations of the Company Upon Termination. (a) Termination by By the Company Other Than for Cause Cause, Death or by Disability; By the Executive other than for Good Reason. IfSubject to Section 5, if, during the Employment Period, or any Additional Employment Period, (x) the Company shall terminate the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to Cause, death or Disability), the Company shall have no further payment obligations to Disability or (y) the Executive or his legal representatives under this Agreement, other than forshall terminate employment for Good Reason:
(i) the Company shall pay to the extent not theretofore paid, Executive the following amounts:
(A) a lump sum cash payment within 30 days after the Date of Termination equal to the aggregate of the following amounts: (w1) the Executive’s Annual Base Salary earned and vacation pay through the Date of Termination, (x2) the Executive’s accrued Annual Bonus for the fiscal year ending 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 TerminationTermination in accordance with the applicable Company policy, in the case of each of clauses (y1) compensation previously deferred by the Executive through (together with any accrued interest or earnings thereon3), and to the extent not previously paid (zthe sum of the amounts described in clauses (1) any accrued and unused vacation pay through the Date of Termination (3) shall be hereinafter referred to as the “Accrued Obligations”); and
(B) subject to 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 delivered to the Company not later than 22 days after the Date of Termination (or such longer period of time permitted by the Company, but in no event later than the latest business day that is not more than two months after the end of the calendar year in which the Date of Termination occurs) (the “Release Deadline”), an amount equal to the sum shall be paid of (x) the product of two times the Executive’s Annual Base Salary, plus (y) the product of 0.75 times the Executive’s Target Bonus as in effect for the fiscal year of the Company in which the Date of Termination occurs, payable in a lump sum within 15 30 days following after the Date of Termination; and
(ii) if the Executive makes a timely election to receive COBRA coverage under Section 4980B of the Code, the Company will pay the cost of such coverage during the period it remains in effect, not to exceed 18 months following the Date of Termination (the benefits provided pursuant to this Section 4(a)(ii), the “Post-Employment Health Care Benefits”);
(iii) if the Date of Termination occurs on or after the second anniversary of the Effective Date, all remaining unvested shares of the Promotion Restricted Stock will vest. If the Date of Termination occurs prior to the second anniversary of the Effective Date, a number of the unvested shares of the Promotion Restricted Stock will vest equal to the sum of (i) 33,333 shares of Promotion Restricted Stock plus (ii) 33,333 shares of Promotion Restricted Stock multiplied by a fraction, the numerator of which is the number of days from the latest anniversary of the Effective Date through the date of termination, and the denominator of which is 365 (rounded down to the nearest whole share). Any shares of the Promotion Restricted Stock which are not vested as of the Date of Termination (after application of this Section 4(a)(iii)) shall be forfeited immediately upon the Date of Termination. The benefits provided pursuant to this Section 4(a)(iii) (the “Equity Award Vesting Benefits”) shall be subject to the Executive’s delivery of an executed Release prior to the Release Deadline (and non-revocation thereof); 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 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 through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
. Notwithstanding the foregoing provisions of Section 4(a)(i), in the event that the Executive is a “specified employee” (bwithin 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) Death (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 Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability provided under Section 4(a)(i) during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days six-month period immediately following the Date of TerminationTermination shall instead be paid, with interest on any delayed payment at the applicable federal rate provided for in Section 7872(f)(2)(A) and Other Benefits; of the Code (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary“Interest”), payable on the next payroll first business day after the date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company that is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards409A Payment Date”). If a Change in Control occurs during such six month period For the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month periodavoidance of doubt, the Unvested Equity Awards will parties hereto acknowledge that the severance payments and benefits described in this Agreement are intended to be forfeited immediately following such six month period. The Executive may elect, and exempt from the Company will allow, the payment operation of Section 409A of the exercise price of any outstanding vested stock options, Code and not “deferred compensation” within the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions meaning of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:409A.
Appears in 2 contracts
Samples: Employment Agreement (Sunrise Senior Living Inc), Employment Agreement (Sunrise Senior Living Inc)
Obligations of the Company Upon Termination. Following any termination of Executive’s employment during the Term, Executive shall not be otherwise compensated for the loss of employment or the loss of any rights or benefits under this Agreement or any other plans and programs, except as provided below:
(a) Termination by In the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the event Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due pursuant to death or DisabilitySection 4(a), the Company Executive shall have no further payment obligations be entitled to the Executive or his legal representatives under this Agreement, other than for:
receive (i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual any unpaid Base Salary earned through the Date his date of Terminationtermination, (xii) the Bonus payment for the fiscal year ending immediately prior to the Date of Terminationany accrued but unused vacation or other similar paid time-off, (yiii) compensation previously deferred by payment of any vested benefit payable under the Executive (together Company’s employee benefit plans in accordance with any accrued interest or earnings thereon)the terms thereof, and (ziv) reimbursement for any accrued and unused vacation pay through reasonable business expenses incurred prior to such termination for which Executive has complied with the Date of Termination Company’s reimbursement policies (collectively, the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other BenefitsRights”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon In the event Executive’s employment terminates pursuant to Section 4(b) due to Executive’s death or Disability during the Employment PeriodDisability, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive (or his legal representatives under this Agreementestate or representatives, other than for as applicable) shall be entitled to receive:
(i) payment of the The Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; Rights.
(ii) payment A pro rata Annual Bonus for the year in which such termination occurs based on the number of a lump sum cash amount equal days Executive was employed during the year of termination, which shall be calculated based on actual performance through the end of such year and on the same basis as other bonus-eligible employees. Such pro rata Annual Bonus shall be paid to Executive in the fiscal year next following the year in which his employment terminates, at the same time annual bonuses for such preceding year are paid to the ExecutiveCompany’s current Annual Base Salary, payable on other bonus-eligible employees but in any event by no later than the next payroll date immediately 15th day of the third month following the eighth day following the delivery to the Company close of a properly executed Release in accordance with Section 4(f) of this Agreement; such preceding year.
(iii) Welfare Benefit Continuation With respect to any Eligible Award (as defineddefined below) outstanding at the time of such termination, and pursuant to the terms and such award shall be treated in the manner describeddescribed in Section 5(e) of the Sirius LTIP or Section 7(e)(i) of the WTM LTIP, as applicable, or to the extent granted under a successor plan thereto, shall be treated in a manner set forth in such plan. For avoidance of doubt, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary case of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled Eligible Award that becomes so payable in accordance with the terms provisions of the plans referred to in the preceding sentence, payment shall be made by no later than the 15th day of the third month following the end of the year in which such awards become earned based on the achievement of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardperformance objectives.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than without Cause pursuant to Section 4(c) or is terminated by the Executive for Good Reason or the Executive dies or incurs a Disability, pursuant to Section 4(d) (in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior other than due to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect entitled to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following eventsreceive:
Appears in 2 contracts
Samples: Employment Agreement (Sirius International Insurance Group, Ltd.), Employment Agreement (White Mountains Insurance Group LTD)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), ; (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, ; and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement ; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest may be exercised and/or settled in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month periodthe applicable plan or award agreement; provided, however, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, payments and benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) . In addition, upon a Change in Control, if whether or not the Executive’s employment with the Company (or its successor) ceases for any reason upon or following a Change in Control or continues following the Change in Control, notwithstanding any outstanding other provision of this Agreement or the provisions of any applicable plan or agreement, all equity awards that are not vested on granted by the date Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Controlapplicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awards. The parties hereto agree that if 100% in the event of any conflict or inconsistency between this Agreement and the terms of any equity award agreement, this Agreement shall govern and shall supersede the terms of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. award agreement.
(e) For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 2 contracts
Samples: Employment Agreement (Reata Pharmaceuticals Inc), Employment Agreement (Reata Pharmaceuticals Inc)
Obligations of the Company Upon Termination. (a) Termination by By the Company Company, Other Than for Cause Death or by the Executive other than for Good ReasonDisability. If, during the Employment Period, or any Additional Employment Period, the Company terminates the Executive’s 's employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to the Executive's death or Disability), the Company shall have no further payment obligations shall, except as provided in clause (ii) below, pay the amounts described in subparagraph (i) below to the Executive or his legal representatives under this Agreement, other than forin a lump sum in cash within 30 days after the Date of Termination:
(i) The amounts to be paid in a lump sum as described above are:
(A) The Executive's accrued but unpaid cash compensation (the extent not theretofore paid"Accrued Obligations"), which shall equal the sum of (w1) any portion of the Executive’s 's Annual Base Salary earned through the Date of Termination, Termination that has not yet been paid; (x2) any Bonus that the Bonus Executive has earned for the a prior full fiscal year ending immediately that has ended prior to the Date of Termination, Termination but which has not yet been calculated and paid; (y3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) that has not yet been paid (subject to any applicable provisions of any deferred compensation plan with respect to the payment thereof), ; and (z4) any accrued and unused but unpaid vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Terminationpay; and
(B) Severance pay equal to the Annual Base Salary; provided, however, that in connection with a termination by the Company other than (1) for Cause or (2) due to the Executive's death or Disability, such severance pay shall be equal to the Annual Base Salary multiplied by the number of years constituting the Post-Termination Restriction Period (as defined in Section 8(a)(ii)). (For example, if the Company, pursuant to its Restriction Election (as defined in Section 8(a)(ii)), elects a two-year Post-Termination Restriction Period, then severance pay will be equal to two times the Annual Base Salary.)
(ii) Notwithstanding the foregoing, if the Executive's employment is terminated for Cause, the Executive shall not be entitled to the extent not theretofore paid or provided, payments contemplated by clause (i)(B) of this Section 5(a) and the Company shall timely pay or provide payment to the Executive and/or the Executive’s family any other amounts or benefits required in connection therewith shall be limited 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 payment of the Company (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, Accrued Obligations and the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any "Cause" shall mean (1) conviction of the following events:Executive by a court of competent jurisdiction of a felony (excluding felonies under the Motor Vehicle Code); (2) any act of intentional fraud in connection with his duties under this Agreement; (3) any act of gross negligence or wilful misconduct with respect to the Executive's duties under this Agreement; and (4) any act of wilful disobedience in violation of specific reasonable directions of the Board consistent with the Executive's duties.
Appears in 2 contracts
Samples: Employment Agreement (Amscan Holdings Inc), Employment Agreement (Amscan Holdings Inc)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other Good Reason; Other than for Good ReasonCause, Death or Disability. If, during the Employment Period, or any Additional Employment Period, the Company shall terminate the Executive’s employment with the Company is terminated by the Company other than for Cause or by Disability or the Executive other than shall terminate employment for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than forReason:
(i) the Company shall pay to the extent not theretofore paid, 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 (w1) the Executive’s Annual Base Salary earned through the Date of Termination to the extent not theretofore paid; (2) the product of (x) the target bonus of the Executive for the year of termination under the Company’s Annual Short-Term Bonus Plan (the “Target Bonus”) and (y) a fraction, the numerator of which is the number of days in the current year through the Date of Termination, and the denominator of which is 365; and (x3) the Bonus for the fiscal year ending immediately prior any accrued vacation pay to the Date extent not theretofore paid (the sum of Terminationthe amounts described in clauses (1), (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon2), and (z3) any accrued and unused vacation pay through the Date of Termination (shall be hereinafter referred to as the “Accrued Obligations”);
B. the amount equal to the product of (1) [two] [three]1 and (2) the sum of (x) the Executive’s Annual Base Salary and (y) the Target Bonus; and
C. the actuarial equivalent of the amounts by which the Executive’s total vested benefits under The El Paso Electric Company Retirement Plan (or any successor plan put into effect prior to a Change in Control), which sum computed as if Executive had [two] [three] 1 additional years of benefit accrual service, exceed the Executive’s actual pension benefits. For this computation, the Executive’s final average salary shall be paid within 15 days following deemed to be the Date Executive’s annual base compensation in effect immediately prior to the time a Notice of TerminationTermination is given and the benefit and accrual formulas and actuarial assumptions shall be no less favorable than those in effect at such time; and“base compensation” shall include any amounts deducted by the Company for Executive’s account under any agreement with the Company or Section 125 and 401(k) of the Internal Revenue Code of 1986, as amended (the “Code”).
(ii) to for two years after the extent not theretofore paid Executive’s Date of Termination, or providedsuch longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall timely pay or provide continue the medical, long-term disability, dental, accidental death and dismemberment and life insurance benefits 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family dependents at least equal to those that which would have been provided to them in accordance with the plans, programs, practices and policies in effect under Section 2(b)(v) of this Agreement (the “Continuing Benefit Plans”) as if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted either by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(iv) To the extent not theretofore paid or provided, the Company shall timely pay or provide to permitting the Executive and/or the Executive’s family dependents to participate in the Other Benefits.
(v) If Continuing Benefit Plans, paying Executive’s premiums for COBRA coverage under applicable plans, by providing the Executive and/or the Executive’s employment is terminated within six months prior dependents with equivalent benefits outside the Continuing Benefit Plans or by providing Executive a cash payment sufficient for the Executive to a Change in Control and the provisions of Section 4(d) applypurchase equivalent benefits, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, as the Company shall paymay elect, no later than so long as the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order net after-tax benefit to provide them is the same as if the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date had remained an employee of the Change Company participating in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in ControlContinuing Benefit Plans); provided, however, that if 100% of the equity awards would otherwise become vested pursuant Executive becomes reemployed with another employer and is eligible to the vesting rules stated above receive medical, long-term disability, dental, accidental death and dismemberment or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Controllife insurance benefits under another employer-provided plan, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:the
Appears in 2 contracts
Samples: Change of Control Agreement (El Paso Electric Co /Tx/), Change of Control Agreement (El Paso Electric Co /Tx/)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to 9 months of the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 9 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to 9 months of the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 9 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the he withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. Subject to Section 4(f), and notwithstanding the provisions of Section 2(b)(vii) or the provisions of any applicable plan or agreement, the Performance-Based Option and the RSUs shall immediately vest at the Date of Termination to the same extent as to which the Time-Vested Option shall have been vested at the Date of Termination, and such vested Performance-Based Option and RSUs may be exercised or settled in accordance with the terms of this Agreement and the applicable plan or award agreement. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:one-
Appears in 1 contract
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or Reasonable Cause, by the Executive other than for Good ReasonReason or due to Executive’s Death or Disability. If, during the Employment Period, or any Additional Employment Severance Period, the Executive’s employment with the Company is terminated by the Company for Reasonable Cause or due to the Executive’s death or Disability, or by the Executive other than for Good Reason (and not due to death or Disability)Reason, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (wA) the Executive’s Annual Base Salary earned but unpaid through the Date of Termination, (xB) the Annual Bonus for the fiscal year ending immediately prior to the Date of TerminationTermination to the extent not theretofore paid, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (zC) any vacation pay accrued and unused vacation pay through the Date of Termination Termination, and (D) reimbursement for any expenses for which the Executive has not been previously reimbursed (collectively, the “Accrued Obligations”), which sum amounts shall be paid within 15 days following the Date of Termination; and
(ii) 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 provided, or which the Executive and/or the Executive’s family is eligible to receive receive, pursuant to this Agreement and under any planCompany benefit plans, program, policy or any practice or contract or agreement of the Company Company, including, without limitation, any compensation previously deferred by the Executive (“Other Benefits”).
(btogether with any accrued interest or earnings thereon) Death or Disability prior toand reimbursement for relocation and temporary living expenses, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but and business expenses incurred prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up each case, with such amounts and benefits to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, be paid or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled provided in accordance with the terms of the applicable plan or award agreement; providedgoverning plan, howeverprogram, the Executive may electpolicy, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan practice or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awardscollectively, the “Unvested Equity AwardsOther Benefits”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Samples: Severance Agreement (Huntsman CORP)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or Reasonable Cause, by the Executive other than for Good ReasonReason or due to Executive’s Death or Disability. If, during the Employment Period, or any Additional Employment Severance Period, the Executive’s employment with the Company is terminated by the Company for Reasonable Cause or due to the Executive’s death or Disability, or by the Executive other than for Good Reason (and not due to death or Disability)Reason, the Company shall have no further thither payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (wA) the Executive’s Annual Base Salary earned but unpaid through the Date of Termination, (xB) the Annual Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by Termination to the Executive (together with any accrued interest or earnings thereon)extent not theretofore paid, and (zC) any vacation pay accrued and unused vacation pay through the Date of Termination (collectively, the “Accrued Obligations”), which sum shall be paid ) within 15 days following the Date of TerminationTermination or any such earlier time as may be required by law; and
(ii) 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 provided, or which the Executive and/or the Executive’s family is eligible to receive receive, pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company Company, including, without limitation, any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and reimbursement for relocation and temporary living expenses, and business expenses incurred prior to the Date of Termination, in each case, with such amounts and benefits to be paid or provided in accordance with the terms of the governing plan, program, policy, practice or agreement (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control Termination by the Company other than for Reasonable Cause or by Executive for Good Reason. If, during the Employment Severance Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Reasonable Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) 3(a), and (ii)) the payments and benefits specified in Section 3.2 of the Severance Plan for “Senior Executives” of the Company, (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in conditions of Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b3.1(a) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(fb) of this Agreementthe Severance Plan.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Samples: Severance Agreement (Huntsman CORP)
Obligations of the Company Upon Termination. (a) Termination by By Executive for Good Reason; By the Company Other Than for Cause or by Disability. In partial consideration for the noncompetition covenants of the Executive other than for Good Reason. Ifpursuant to Section 8(b) and in part as liquidated damages in lieu of the payments and benefits to which the Executive would have been entitled through the remainder of the Employment Period, if, during the Employment Period, or any Additional Employment Period, the Company shall terminate the Executive’s employment with the Company is terminated by the Company other than for Cause or by Disability or the Executive other than shall terminate employment for Good Reason (and not due to death or Disability)Reason, the Company shall have no further payment obligations pay to the Executive or his legal representatives under this Agreement, other than fora lump sum in cash within 30 days after the Date of Termination equal to the sum of the following amounts:
(i) to one and a half (1.5) times the extent not theretofore paid, the sum of Executive’s current Annual Base Salary,
(wii) the Executive’s Annual Base Salary earned through the Date of Termination,
(iii) any previous years’ annual incentive payments (determined based upon actual Company results and not reduced for individual performance), to the extent not previously paid,
(iv) payment for any accrued vacation, and
(v) the product of (x) the Target Regular Annual Bonus for and (y) a fraction, the numerator of which is the number of days in the fiscal year ending immediately prior to in which the Date of TerminationTermination occurs through the Date of Termination and the denominator of which is 365. In addition, (y) the Company shall pay the Executive or his legal representative any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) as provided by the terms of such deferred compensation plan or program. The sum of all of the amounts described in subsections (ii), (iii) and (ziv) any accrued and unused vacation pay through the Date of Termination (this Section 5(a) shall be hereinafter referred to as the “Accrued Obligations”).” In addition, which sum shall be paid within 15 days following the Date of Termination; and
(ii) to the extent not theretofore paid or providedif, 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to terminate the Executive or his legal representatives under this Agreement, Executive’s employment other than for (i) payment Cause or Disability or the Executive shall terminate employment for Good Reason, all of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation Initial Options and Initial Restricted Stock shall become fully vested and earned as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; , and (ivexcept as set forth below) subject to Section 4(f)all such Initial Options shall remain exercisable for the remainder of their original term. If, all equity awards granted by during the Employment Period, the Company to, shall terminate the Executive’s employment other than for Cause or otherwise held by, Disability or the Executive shall terminate employment for Good Reason, and, as of the applicable Date of Termination, the Company has not yet granted the Executive all of the Executive’s Initial Options or Initial Restricted Stock, any such unissued Initial Options shall be granted to the Executive immediately vest prior to such Date of Termination and the Company shall make a payment to the Executive, which may, in full and any repurchase provisions (other than the Company’s election, be in the form of cash or shares of Company stock, equal in value to the total fair market value repurchase provisionsas of such Date of Termination of any such unissued Initial Restricted Stock (if the payment is made in cash, such Initial Restricted Stock shall be deemed to have been sold for purposes of this Agreement). Any stock option exercises or stock sales by the Executive between the Effective Date and the fourth anniversary of the Effective Date shall be at the Executive’s own risk. In addition, 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 for Good Reason, in each case, prior to the fourth anniversary of the Effective Date (“Fourth Anniversary”), then:
(A) If on the Fourth Anniversary the aggregate “spread” (as defined below) of the Initial Options then held by Executive is less than $1.35 million, all such options shall lapse and may be terminate 30 days thereafter unless exercised and/or settled during such 30-day period. As soon as practicable following such exercise of all of the Initial Options, but in no event earlier than the date six months after the Date of Termination, the Company shall pay the Executive a supplemental payment equal to the excess of $1.35 million over the aggregate fair market value (determined for the purposes of this Section 5, except as provided in (B) below, in accordance with the terms of the applicable plan or award agreement; provided, however, option plan) of the Executive may elect, shares acquired upon such exercise as of the applicable exercise date. “Spread” as of any date shall mean the difference between the fair market value of a share as of such date and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary per share of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardat issue.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Samples: Employment Agreement (Fisher Scientific International Inc)
Obligations of the Company Upon Termination. (a) Payments and Benefits Upon Termination by By the Company Other than for Cause or by the Executive other than for Good ReasonDeath or Disability. If, during the Employment Period, or any Additional Employment Period, the Company terminates the Executive’s 's employment with the Company is terminated by the Company other than for Cause or by the Executive other than for Good Reason (and not due to death Death or Disability), the Company shall have no further payment obligations pay to the Executive or his legal representatives under this Agreement, other than for:
in a lump sum in cash within thirty (i30) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through days after the Date of Termination, the greater of the following amounts calculated in (xi), (ii) or (iii) below,
(i) the Bonus sum of (A) any portion of the Executive's Annual Base Salary through the Employment Period not adjusted for merit increases; (B) with respect to any annual bonus plan contemplated under Section 3(b) of this Employment Agreement, an amount representing the target annual bonus for the fiscal year ending immediately prior to remainder of the Date of Termination, Employment Period; (yC) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), ) that has not yet been paid; and (zD) any accrued but unpaid incentive compensation and unused vacation pay through pay; or
(ii) any payments due the Date Executive under the Change of Control Agreement dated March 1, 2000 (the "COC Agreement"); or
(iii) any severance payments due the Executive under the RAG American Coal Holding, Inc. Severance Program in effect at the time of Termination (the “Accrued Obligations”"Severance Program"); provided, which sum however, that there shall be paid within 15 days following the Date no duplication of Termination; and
(ii) to the extent not theretofore paid or providedpayments under this Employment Agreement, the Company shall timely pay or provide to COC Agreement, the Executive and/or the Executive’s family Severance Program and any other amounts or benefits required to severance obligation of the Company, and the payment under this Section 5(a) shall be paid or provided or which the Executive and/or the Executive’s family is eligible to receive pursuant to this Agreement and offset by any amount otherwise payable under any plansuch agreement, programprogram or obligation and any payment in lieu of notice of termination of employment required by federal, policy state or practice or contract or agreement local law. After payment of the Company (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Controlabove amount, the Company shall have no further payment obligations to the Executive or his legal representatives under this Employment Agreement, the COC Agreement, the Severance Program or any other than for (i) payment severance obligation of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity awardCompany.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Samples: Employment Agreement (Foundation Coal Holdings, Inc.)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good Reason. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability), the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to 9 months of the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 9 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to 9 months of the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 9 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h4(g), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive Good Reason; other than for Good ReasonCause, Death, Disability or Retirement. If, during the Employment Period, or any Additional Employment Period, the Company shall terminate the Executive’s 's employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death Cause, Death, Disability or Disability), the Company shall have no further payment obligations to Retirement or the Executive or his legal representatives under this Agreementshall terminate employment for Good Reason, other than forthen in consideration for past services and in consideration for the undertakings set forth in Section 7 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, and (2) the sum product of (wx) an Annual Bonus of an amount equal to the greater of (I) the Executive’s Annual highest annual cash incentive bonus paid by Wachovia or the Company to the Executive for the three calendar years prior to the Date of Termination or (II) the highest annual cash incentive bonus paid by Wachovia to the Executive for the three calendar years prior to the date of this Employment Agreement (such greater amount the "Base Salary earned Bonus"), and (y) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination, and the denominator of which is 365, to the extent not theretofore paid (xthe "Pro Rata Bonus"), (3) the any unpaid Annual Bonus for the fiscal year ending immediately prior to the Date of Terminationyear, (y4) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and (5) any accrued paid time off, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), (3), (4) and (5) shall be hereinafter referred to as the "Accrued Obligations"); and
(B) the sum of (1) the Executive's Annual Base Salary plus Base Bonus, and (z2) any accrued the result of multiplying (x) the aggregate amount of the Executive's Annual Base Salary plus Base Bonus and unused vacation pay through (y) the number of years and fractions thereof remaining in the period from the Date of Termination to the expiration of the Employment Period provided that following a Change in Control of the Company, the period in this clause (y) shall be three years (such sum, the "Continuation Payments"). For purposes of determining the Base Bonus hereunder, the Company shall exclude any special or one-time bonuses and any premium enhancements to bonuses but shall include any portions of bonuses (other than the excluded bonuses) which have been deferred by the Executive;
(ii) for the period from the Executive's Date of Termination to the expiration of the Employment Period (or for the remainder of the Executive's life if such Date of Termination is after a Change in Control), or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue medical, dental and life insurance benefits to the Executive and/or the Executive's family on a substantially equivalent basis to those which would have been provided to them in accordance with the medical, dental and life insurance plans, programs, practices and policies described in Section 2(b)(iv) of this Agreement if the Executive's employment had not been terminated (the “Accrued Obligations”"Employee Continuation Benefits"), which sum provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical, dental and/or life insurance benefits under another employer provided plan, the medical, dental and/or life insurance benefits described herein shall terminate. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be paid within 15 days following considered to have terminated employment with the Company on the Date of Termination; and
(iiiii) (A) the Company shall timely pay or provide the benefits described in Section 2(b)(iii), (B) 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”).
(bexcluding any severance plan, program, policy or practice) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, that connection the Company shall have no further payment obligations to acknowledges that the Executive is eligible, upon termination of employment to be treated as a retiree for purposes of retiree benefits under all Company plans, programs, policies or his legal representatives under this Agreementpractices, other than for (iC) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest be deemed to continue in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms employment of the applicable plan or award agreement; provided, however, Company during the Executive may elect, and period of time used to determine the Company will allow, the payment length of the exercise price Continuation Payments pursuant to Section 4(a)(i)(B) (the "Continuation Payments Period") for the purposes of any all outstanding stock options, restricted awards and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable awards granted to the Executive pursuant under the Wachovia Corporation Stock Plan as in effect on the date hereof. At the end of the Continuation Payments Period the Executive will be deemed to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company other than for Cause or by Executive for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s have retired from employment with the Company is terminated by for the Company for any reason other than for Cause purpose of establishing his rights under the Wachovia Corporation Stock Plan (and not due to death any successor or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(ireplacement plan thereto) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal any applicable award agreement or option agreement entered into prior to the Executive’s then current Annual Base SalaryEffective Date, payable on provided that all such awards and options shall vest in full without any further restriction and become fully exercisable, as the next payroll date immediately following the eighth day following case may be no later than the Executive’s delivery to the Company 's attainment of a properly executed Release in accordance with Section 4(f) of this Agreementage 60, and (iiiD) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that on the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity's death, the Company shall continue benefits provided under Welfare Plans to the Executive and/or Employee Continuation Benefits for the Executive’s family at least equal to those that would have been provided to them if 's spouse for life and for the Executive’s employment had not been terminated 's covered dependents for as long as they remain eligible (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), such amounts and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided benefits described in this Section 4(d)(ii4(a)(iii) is in addition shall be hereinafter referred to any rights Executive may have to continue such coverages under as the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii"Other Benefits").
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or Reasonable Cause, by the Executive other than for Good ReasonReason or due to Executive’s Death or Disability. If, during the Employment Period, or any Additional Employment Severance Period, the Executive’s employment with the Company is terminated by the Company for Reasonable Cause or due to the Executive’s death or Disability, or by the Executive other than for Good Reason (and not due to death or Disability)Reason, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (wA) the Executive’s Annual Base Salary earned but unpaid through the Date of Termination, (xB) the Annual Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by Termination to the Executive (together with any accrued interest or earnings thereon)extent not theretofore paid, and (zC) any vacation pay accrued and unused vacation pay through the Date of Termination (collectively, the “Accrued Obligations”), which sum shall be paid ) within 15 days following the Date of Termination; and
(ii) 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 provided, or which the Executive and/or the Executive’s family is eligible to receive receive, pursuant to this Agreement and under any plan, program, policy or practice or contract or agreement of the Company Company, including, without limitation, any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and reimbursement for relocation and temporary living expenses, and business expenses incurred prior to the Date of Termination, in each case, with such amounts and benefits to be paid or provided in accordance with the terms of the governing plan, program, policy, practice or agreement (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control Termination by the Company other than for Reasonable Cause or by Executive for Good Reason. If, during the Employment Severance Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Reasonable Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) 3(a), and (ii)) the payments and benefits specified in Section 3.2 of the Huntsman Executive Severance Plan (the “Severance Plan”) for “Senior Executives” of the Company, (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in conditions of Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b3.1(a) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(i) The Company shall pay to the Executive (A) the Accrued Obligations within 15 days following the Date of Termination, and (B) subject to Sections 4(f) and 4(h), a lump sum cash amount equal to two times the Executive’s then current Annual Base Salary, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(fb) of this Agreementthe Severance Plan.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(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 the Other Benefits.
(v) If the Executive’s employment is terminated within six months prior to a Change in Control and the provisions of Section 4(d) apply, but the provisions of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), upon the Change in Control, the Company shall pay, no later than the first payroll date following such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Control.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Samples: Severance Agreement (Huntsman CORP)
Obligations of the Company Upon Termination. (a) Termination by the Company for Cause or by the Executive other than for Good Reason; Termination other Than for Cause, Death or Disability. If, during the Employment Period, or any Additional Employment Period, the Executive’s employment with the Company is terminated by the Company for Cause or by the Executive other than for Good Reason (and not due to death or Disability)term of this Agreement, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for:
(i) to the extent not theretofore paid, the sum of (w) terminate the Executive’s Annual Base Salary earned through the Date of Termination, (x) the Bonus for the fiscal year ending immediately prior to the Date of Termination, (y) compensation previously deferred by the Executive (together with any accrued interest or earnings thereon), and (z) any accrued and unused vacation pay through the Date of Termination (the “Accrued Obligations”), which sum shall be paid within 15 days following the Date of Termination; and
(ii) 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 (“Other Benefits”).
(b) Death or Disability prior to, or more than two years after, a Change in Control. Upon the Executive’s death or Disability during the Employment Period, or any Additional Employment Period, but prior to the occurrence of a Change in Control or more than two years after the occurrence of a Change in Control, the Company shall have no further payment obligations to the Executive or his legal representatives under this Agreement, other than for (i) payment of the Accrued Obligations (within 15 days following the Date of Termination) and Other Benefits; (ii) payment of a lump sum cash amount equal to the Executive’s current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement; (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination; and (iv) subject to Section 4(f), all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) shall lapse and may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(c) Certain Terminations more than six months prior to, or more than two years after, a Change in Control by the Company 's employment other than for Cause or by Disability or the Executive shall terminate employment for Good Reason. If, during the Employment Period, or any Additional Employment Period, but more than six months prior to, or more than two years after, the occurrence of a Change in Control, the Executive’s employment with the Company is terminated by the Company for any reason other than for Cause (and not due to death or Disability) or by the Executive for Good Reason, the Executive will be entitled to (i) the Accrued Obligations and Other Benefits, payable in accordance with Section 4(a)(i) and (ii), (ii) subject to Sections 4(f) and (h), a lump sum cash amount equal to the Executive’s then current Annual Base Salary, payable on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company of a properly executed Release in accordance with Section 4(f) of this Agreement, and (iii) Welfare Benefit Continuation as defined, and pursuant to the terms and in the manner described, in Section 4(d)(ii) up to the 12 month, rather than the 24 month, anniversary of the Date of Termination. In addition, notwithstanding the provisions of any applicable plan or agreement and subject to Section 4(f), equity awards held by the Executive that otherwise would have been forfeited will continue to remain outstanding, unvested (and will not continue vesting) and subject to forfeiture for a period of six months following the Date of Termination (such equity awards, the “Unvested Equity Awards”). If a Change in Control occurs during such six month period the Unvested Equity Awards will vest in accordance with Section 4(d)(v). If a Change in Control does not occur during such six month period, the Unvested Equity Awards will be forfeited immediately following such six month period. The Executive may elect, and the Company will allow, the payment of the exercise price of any outstanding vested stock options, and the satisfaction of any required tax withholding with respect to any vested outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(d) Certain Terminations within six months prior to, or within two years following, a Change in Control. In the event that the Executive’s employment is terminated by the Company for any reason other than Cause or by the Executive for Good Reason or the Executive dies or incurs a Disability, in each case, during the Employment Period, or any Additional Employment Period, and such termination occurs within six months prior to (excluding death or Disability), or within two years after, a Change in Control, the following provisions shall apply and Sections 4(b) and (c) shall not be applicable until Section 4(d) is no longer applicable:
(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 (Aaa) the Accrued Obligations within 15 days following Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (bb) reimbursement for any and all monies advanced in connection with Executive's employment through the Date of Termination, and (Bcc) subject all other payments and benefits to Sections 4(fwhich Executive may be entitled under the terms of any benefit plan of the Company through the Date of Termination (collectively, the "Accrued Obligations"). Where applicable, such payments shall be prorated based on a 360-day year and the number of days elapsed during the year in question.
B. For six (6) and 4(h), a lump sum cash amount equal to two times months after the Executive’s then current Annual Base Salary's Date of Termination, such sum to be paid on the next payroll date immediately following the eighth day following the Executive’s delivery to the Company shall at its expense provide health and medical insurance to Executive and his family of a properly executed Release in accordance with Section 4(f) the same type and scope as was provided during the term of this Agreement.
(ii) Until the earlier to occur of (A) the 24 month anniversary of the Date of Termination or (B) the Executive’s acceptance of full-time employment with another entity, the Company shall continue benefits provided under Welfare Plans to the Executive and/or the Executive’s family at least equal to those that would have been provided to them if the Executive’s employment had not been terminated (“Welfare Benefit Continuation”) pursuant to an in-kind benefit arrangement that satisfies the requirements of Treasury Regulation § 1.409A-3(i)(1)(iv)(A), and the Company-provided costs of such Welfare Benefit Continuation will be imputed as income to the Executive and reported on Form W-2; provided, that in the event the Company is unable to provide the Welfare Benefit Continuation under its Welfare Plans or to the extent such Welfare Benefit Continuation would subject the Company to negative tax consequences, the Company will reimburse the Executive for amounts necessary to enable the Executive to obtain similar benefits, and any such reimbursement will be made in accordance with the provisions of Treasury Regulation § 1.409A-3(i)(1)(iv). Such Welfare Benefit Continuation provided in this Section 4(d)(ii) is in addition to any rights Executive may have to continue such coverages under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”). The COBRA continuation period shall begin on the day following the end of the Welfare Benefit Continuation period provided in this Section 4(d)(ii).
(iii) Subject to Section 4(f), notwithstanding the provisions of any applicable plan or agreement, all equity awards granted by the Company to, or otherwise held by, the Executive shall immediately vest in full and any repurchase provisions (other than fair market value repurchase provisions) will lapse and such awards may be exercised and/or settled in accordance with the terms of the applicable plan or award agreement; provided, however, the Executive may elect, and the Company will allow, the exercise of any outstanding stock options, and the satisfaction of any required tax withholding with respect to any outstanding stock option or other equity award, through the withholding of shares otherwise issuable to the Executive pursuant to the stock option or other equity award.
(iv) C. To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive and/or any other amounts or benefits required to be paid or provided or which the Executive’s family Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies through the Date of Termination (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(vii) If All unvested plan units of Executive under the Executive’s employment is terminated within six months prior to a Change in Control Stock Incentive Program shall vest and the provisions Company shall, within ten (10) days following the Date of Section 4(d) apply, but Termination deliver to Executive the provisions shares of Section 4(b) or 4(c) were initially applied, then, subject to Section 4(f), the Company's common stock issuable upon the Change in Control, the Company shall pay, no later than the first payroll date following conversion of such Change in Control, additional payments and provide additional benefits and vesting in order to provide the Executive the payments, benefits and vesting as set forth in Section 4(d). The post employment exercise period for stock options under the Equity Documents shall be measured from the date of the Change in Controlplan units.
(e) In addition, upon a Change in Control, if the Executive’s employment with the Company (or its successor) continues following the Change in Control, any outstanding equity awards that are not vested on the date of the Change in Control shall become vested and, as applicable, exercisable with respect to one-eighteenth of all such unvested equity awards on the one month anniversary of the Change in Control and thereafter with respect to an additional one-eighteenth of all unvested equity awards at the time of the Change in Control on each subsequent month anniversary of the Change in Control such that the equity awards will be 100% vested and, as applicable, exercisable on the eighteen month anniversary of the Change in Control; provided, however, that if 100% of the equity awards would otherwise become vested pursuant to the vesting rules stated above or in the Equity Documents prior to the eighteen month anniversary of the date of the Change in Control, then the equity awards will become vested and, as applicable, exercisable in accordance with such vesting rules or Equity Documents. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events:
Appears in 1 contract
Samples: Employment Agreement (Videolocity International Inc)