Obligations Upon Termination After a Change of Control. (a) Termination by Company for Reasons other than Death, Disability or Cause or by the Employee for Good Reason. If, after a Change of Control and during the Employment Term, the Company or any of its Affiliates terminates the Employee's employment other than for Cause, death or Disability, or the Employee terminates employment for Good Reason, subject to Section 3.6, (i) the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount equal to three times the sum of (i) the amount of Base Salary in effect pursuant to Section 3.2(a) hereof at the date of termination, plus (ii) the greater of (x) the average of the annual bonuses paid or to be paid to the Employee with respect to the immediately preceding three fiscal years or (y) the target Bonus for which the Employee is eligible for the fiscal year in which the date of termination occurs, assuming achievement at the target level of the objective performance goals established with respect to such bonus and achievement of 100% of any subjective performance goals or criteria otherwise applicable with respect to such bonus; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to the fiscal year in which termination occurs, such lump sum payment shall be reduced by an amount equal to such percentage times the bonus component of the lump sum payment (which reduction amount shall be deferred in accordance with such election); (ii) the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount calculated by multiplying the annual bonus that the Employee would have earned with respect to the entire fiscal year in which termination occurs, assuming achievement at the target level of the objective performance goals established with respect to such bonus and achievement of 100% of any subjective performance goals or criteria otherwise applicable with respect to such bonus, by the fraction obtained by dividing the number of days in such year through the date of termination by 365; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to the fiscal year in which termination occurs, such lump sum payment shall be reduced by an amount equal to such percentage times the lump sum payment (which reduction amount shall be deferred in accordance with such election); (iii) if, at the date of termination, the Company shall not yet have paid to the Employee (or deferred in accordance with any effective deferral election by the Employee) an annual bonus with respect to a fully completed fiscal year, the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount determined as follows: (i) if the Board (acting directly or indirectly through any committee or subcommittee) shall have already determined the amount of such annual bonus, such amount shall be paid, and (ii) if the Board shall not have already determined the amount of such annual bonus, the amount to be paid shall be the greater of the amount provided under Section 3.2(b) hereof or the annual bonus that the Employee would have earned with respect to such completed fiscal year, based solely upon the actual level of achievement of the objective performance goals established with respect to such bonus and assuming the achievement of 100% of any subjective performance goals or criteria otherwise applicable with respect to such bonus; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to such completed fiscal year, such lump sum payment shall be reduced by an amount equal to such percentage times the lump sum payment (which reduction amount shall be deferred in accordance with such election); provided, further, that any payment under this subsection (iii) (or any payment under any other provision of this Agreement calculated by reference to prior or target bonus amounts) shall be payable notwithstanding any provision to the contrary set forth in any bonus plan or program of the Company; (iv) for a period of three years following the date of termination of employment, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy (the "Continuation Period"), the Company shall at its expense continue on behalf of the Employee and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits (including any benefit under any individual benefit arrangement that covers medical, dental or hospitalization expenses not otherwise covered under any general Company plan) provided (x) to the Employee at any time during the one-year period prior to the Change in Control or at any time thereafter or (y) to other similarly-situated employees who continue in the employ of the Company or its Affiliates during the Continuation Period. The coverage and benefits (including deductibles and costs) provided in this Section 3.3(a)(iv) during the Continuation Period shall be no less favorable to the Employee and his dependents and beneficiaries than the most favorable of such coverages and benefits during any of the periods referred to in clauses (x) or (y) above; provided, however, in the event of the disability of the Employee during the Continuation Period, disability benefits shall, to the maximum extent possible, not be paid for the Continuation Period but shall instead commence immediately following the end of the Continuation Period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Employee for retiree benefits pursuant to such plans, practices, programs and policies, the Employee shall be considered to have remained employed until three years after the date of termination and to have retired on the last day of such period. The Company's obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the Employee obtains any such benefits pursuant to a subsequent employer's benefit plans, in which case the Company may reduce the coverage of any benefits it is required to provide the Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to the Employee than the coverages and benefits required to be provided hereunder. At the end of the Continuation Period, the Employee shall have the option to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance owned by the Company that relates specifically to the Employee. The Employee will be eligible for coverage under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") at the end of the Continuation Period or earlier cessation of the Company's obligation under the foregoing provisions of this Section 3.3(a)(iv) (or, if the Employee shall not be so eligible for any reason, the Company will provide equivalent coverage); (v) the Company at its cost shall provide to the Employee outplacement assistance by a reputable firm specializing in such services for the period beginning with the termination of employment and ending upon the lapse of the Employment Term; and (vi) the Company shall discharge its obligations under all other applicable sections of this Article III, including Sections 3.4, 3.5, 3.6 and 3.
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Samples: Change of Control Agreement (Centurytel Inc), Change of Control Agreement (Centurytel Inc)
Obligations Upon Termination After a Change of Control. (a) Termination by Company for Reasons other than Death, Disability or Cause or by the Employee for Good Reason. If, after a Change of Control and during the Employment Term, the Company or any of its Affiliates terminates the Employee's employment other than for Cause, death or Disability, or the Employee terminates employment for Good Reason, subject to Section 3.6,
(i) the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount equal to three times the sum of (i) the amount of Base Salary in effect pursuant to Section 3.2(a) hereof at the date of termination, plus (ii) the greater of (x) the average of the annual bonuses paid or to be paid to the Employee with respect to the immediately preceding three fiscal years or (y) the target Bonus for which the Employee is eligible for the fiscal year in which the date of termination occurs, assuming achievement at as such target bonus has been established by the target level of the objective performance goals established with respect to Company for such bonus and achievement of 100% of any subjective performance goals or criteria otherwise applicable with respect to such bonusyear; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to the fiscal year in which termination occurs, such lump sum payment shall be reduced by an amount equal to such percentage times the bonus component of the lump sum payment (which reduction amount shall be deferred in accordance with such election);
(ii) the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount calculated by multiplying the annual bonus that the Employee would have earned with respect to the entire fiscal year in which termination occurs, assuming the achievement at the target level of the objective performance goals established with respect to such bonus and achievement of 100% the elimination of any subjective performance goals or criteria evaluations otherwise applicable with respect to such bonus, by the fraction obtained by dividing the number of days in such year through the date of termination by 365; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to the fiscal year in which termination occurs, such lump sum payment shall be reduced by an amount equal to such percentage times the lump sum payment (which reduction amount shall be deferred in accordance with such election);
(iii) if, at the date of termination, the Company shall not yet have paid to the Employee (or deferred in accordance with any effective deferral election by the Employee) an annual bonus with respect to a fully completed fiscal year, the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount determined as follows:
(i) if the Compensation Committee of the Board (acting directly or indirectly through any committee or subcommittee) shall have already determined the amount of such annual bonus, the greater of such amount or the amount provided under Section 3.2(b) hereof shall be paid, and (ii) if the Board Compensation Committee shall not have already determined the amount of such annual bonus, the amount to be paid shall be the greater of the amount provided under Section 3.2(b) hereof or the annual bonus that the Employee would have earned with respect to such completed fiscal year, based solely upon the actual level of achievement of the objective performance goals established with respect to such bonus and assuming the achievement of 100% elimination of any subjective performance goals or criteria evaluations otherwise applicable with respect to such bonus; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to such completed fiscal year, such lump sum payment shall be reduced by an amount equal to such percentage times the lump sum payment (which reduction amount shall be deferred in accordance with such election); provided, further, that any payment under this subsection (iii) (or any payment under any other provision of this Agreement calculated by reference to prior or target bonus amounts) shall be payable notwithstanding any provision to the contrary set forth in any bonus plan or program of the Company;
(iv) for a period of three years thirty-six (36) months following the date of termination of employment, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy employment (the "Continuation Period"), the Company shall at its expense continue on behalf of the Employee and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits (including any benefit under any individual benefit arrangement that covers medical, dental or hospitalization expenses not otherwise covered under any general Company plan) provided (x) to the Employee at any time during the one120-year day period prior to the Change in Control or at any time thereafter or (y) to other similarly-similarly situated employees executives who continue in the employ of the Company or its Affiliates during the Continuation Period. The coverage and benefits (including deductibles and costs) provided in this Section 3.3(a)(iv) during the Continuation Period shall be no less favorable to the Employee and his dependents and beneficiaries beneficiaries, than the most favorable of such coverages and benefits during any of the periods referred to in clauses (x) or (y) above; provided, however, in the event of the disability of the Employee during the Continuation Period, disability benefits shall, to the maximum extent possible, shall not be paid for the Continuation Period but shall instead commence immediately following the end of the Continuation Period. For purposes In addition, if Employee has reached age 52 and has completed seven years of determining eligibility (but not service at the time of commencement a Change of benefitsControl, Employee shall automatically become vested in the post-retirement benefits provided under the Tidewater Group Welfare Benefits Plan (the "GWB Plan") and be entitled to receive, following termination of employment with the Company, all benefits that would be payable to Employee under the GWB Plan or any successor plan of the Employee for retiree benefits pursuant to such plans, practices, programs and policies, Company or its Affiliates had the Employee shall be considered to have remained employed until three years after retired from employment with the Company or one of its Affiliates on the later of the third anniversary of the Change of Control or the Employee's date of termination and to have retired on retirement (as defined in the last day of such periodGWB Plan) from employment with the Company. The Company's obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the Employee obtains any such benefits pursuant to a subsequent employer's benefit plans, in which case the Company may reduce the coverage of any benefits it is required to provide the Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to the Employee than the coverages and benefits required to be provided hereunder. At the end of the Continuation Period, the Employee shall have the option to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance owned by the Company that relates specifically to the Employee. The Employee will be eligible for coverage under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") at the end of the Continuation Period or earlier cessation of the Company's obligation under the foregoing provisions of this Section 3.3(a)(iv) (or, if the Employee shall not be so eligible for any reason, the Company will provide equivalent coverage). Exhibit A hereto provides an informational overview of COBRA-required coverage as it exists immediately prior to the execution of the Agreement and is not to be considered part of the Agreement; the actual coverage to be provided pursuant to this Section 3.3(a)(iv) will be the COBRA-required coverage at the time this provision becomes effective;
(v) the Employee shall immediately become fully (100%) vested in his benefit (as such benefit may be increased pursuant to Sections 3.3(a)(vii) and 3.3(a)(viii) hereof) under each supplemental or excess retirement plan of the Company at its cost shall provide in which the Employee was a participant, including, but not limited to the Tidewater Inc. Supplemental Executive Retirement Plan (the "SERP"), the Supplemental Savings Plan and any successor plans (collectively, the "Supplemental Plans");
(vi) if, prior to the Change of Control, in a form and manner reasonably satisfactory to the Company, the Employee outplacement assistance shall have elected that his benefits under the Supplemental Plans be paid in a lump sum in cash within five business days of the date of any termination of his employment described in this Section 3.3(a), such benefits (as such benefits may be increased pursuant to Sections 3.3(a) (vii) and 3.3(a)(viii) hereof) shall be so paid, notwithstanding the payment provisions of the Supplemental Plans and any payment or distribution elections made by a reputable firm specializing in the Employee prior to such services lump sum election;
(vii) the Company shall contribute to the Tidewater Inc. Executives' Supplemental Retirement Trust between the Company and Hibernia National Bank, as amended and restated effective January 1, 1993, and subsequently amended, for the period beginning with Employee's account in cash within five business days of the date of termination of employment and ending upon an amount equal to the lapse then present value of the actuarial equivalent of the additional benefits, if any, to which the Employee would be entitled under the Tidewater Inc. Pension Plan, the SERP and any other qualified or non- qualified defined benefit plan maintained by the Company and covering the Employee, regardless of the vesting requirements thereof, or any agreement between the Company and the Employee with respect to retirement benefits that is otherwise provided for in the Employment TermAgreement (such retirement benefit agreement being made a part hereof and specifically incorporated by reference herein), after giving the Employee, for purposes of calculating the benefits due Employee under such plans, (a) full service credit for a three-year period following the Change of Control and (b) compensation credit for each of such three years, with the compensation for each year being calculated by dividing the amount that the Employee will be entitled to receive under Section 3.3(a)(i) hereof by three; notwithstanding any SERP provision regarding accrual of benefits, such additional benefits shall be treated for all purposes as increasing the benefit of the Employee under the SERP and payment of the increased benefit shall be governed by the terms of the SERP, unless the Employee has made an effective election for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an effective payment election at the time of execution of the Prior Agreement with respect to such additional benefits;
(viii) the Company shall contribute to the trust under the Xxxxxxx Xxxxx Non-Qualified Deferred Compensation Plan Trust Agreement between the Company and Xxxxxxx Xxxxx Trust Company of America made June 26, 1997, as subsequently amended, for the Employee's account in cash within five business days of the date of termination of employment an amount equal to the amount of employer contributions that would have been made on the Employee's behalf if the Employee had continued to participate in the Company's Savings Plan, the Company's Supplemental Savings Plan and any other qualified or non-qualified defined contribution plan maintained by the Company until the third anniversary of the Change of Control. Such contribution shall, in the case of a qualified plan, be calculated as if the Employee were fully vested and participating to the maximum extent permitted by such plan and, in the case of a non-qualified plan, be calculated on the same basis as the Employee was participating in such plans and, in all cases, be calculated on the basis of the Employee's Base Salary (determined in accordance with Section 3.2(a) hereof) at the time of the Change of Control or at the date of termination, whichever is greater; notwithstanding any Supplemental Savings Plan provision regarding accrual of benefits, such contribution shall be treated for all purposes as increasing the benefit of the Employee under the Supplemental Savings Plan and payment of the increased benefit shall be governed by the terms of the Supplemental Savings Plan, unless the Employee has made an effective election for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an effective payment election at the time of execution of the Prior Agreement with respect to such contribution; and
(viix) to the extent that Employee is not fully vested in his accrued benefits under the Pension Plan, the Savings Plan or any other qualified plan maintained by the Company, at the time of termination of employment, the Company shall discharge its obligations contribute to the trust for the Supplemental Plan that supplements the respective qualified plan, within five business days of the date of termination of employment, an amount in cash equal to the unvested but accrued benefits under such plans (calculated as the present value of the actuarial equivalents thereof in the case of any qualified defined benefit plan) as of the date of termination of employment; notwithstanding the provisions of any qualified plan or Supplemental Plan regarding accrual of benefits, such contribution shall be treated for all purposes as increasing the benefit of the Employee under the Supplemental Plan which supplements the respective qualified plan, and payment of the increased benefit shall be governed by the terms of such Supplemental Plan, unless the Employee has made an effective election for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an effective payment election at the time of execution of the Prior Agreement with respect to such contribution. The payments and benefits provided in this Section 3.3(a) and under all other applicable sections of this Article IIIthe Company's employee benefit and compensation plans shall be without regard to any amendment made after any Change of Control to any such plan, including Sections 3.4, 3.5, 3.6 which amendment adversely affects in any manner the computation of payments and 3benefits due the Employee under such plan or the time or manner of payment of such payments and benefits. After a Change of Control no discretionary power of the Board or any committee thereof shall be used in a way (and no ambiguity in any such plan shall be construed in a way) which adversely affects in any manner any right or benefit of the Employee under any such plan.
Appears in 1 contract
Obligations Upon Termination After a Change of Control. (a) Termination by Company for Reasons other than Death, Disability or Cause or by the Employee for Good Reason. If, after a Change of Control and during the Employment Term, the Company or any of its Affiliates terminates the Employee's employment other than for Cause, death or Disability, or the Employee terminates employment for Good Reason, subject to Section 3.6,
(i) the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount equal to three times the sum of (i) the amount of Base Salary in effect pursuant to Section 3.2(a) hereof at the date of termination, plus (ii) the greater of (x) the average of the annual bonuses paid or to be paid to the Employee with respect to the immediately preceding three fiscal years or (y) the target Bonus for which the Employee is eligible for the fiscal year in which the date of termination occurs, assuming achievement at as such target bonus has been established by the target level of the objective performance goals established with respect to Company for such bonus and achievement of 100% of any subjective performance goals or criteria otherwise applicable with respect to such bonusyear; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to the fiscal year in which termination occurs, such lump sum payment shall be reduced by an amount equal to such percentage times the bonus component of the lump sum payment (which reduction amount shall be deferred in accordance with such election);
(ii) the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount calculated by multiplying the annual bonus that the Employee would have earned with respect to the entire fiscal year in which termination occurs, assuming the achievement at the target level of the objective performance goals established with respect to such bonus and achievement of 100% the elimination of any subjective performance goals or criteria evaluations otherwise applicable with respect to such bonus, by the fraction obtained by dividing the number of days in such year through the date of termination by 365; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to the fiscal year in which termination occurs, such lump sum payment shall be reduced by an amount equal to such percentage times the lump sum payment (which reduction amount shall be deferred in accordance with such election);
(iii) if, at the date of termination, the Company shall not yet have paid to the Employee (or deferred in accordance with any effective deferral election by the Employee) an annual bonus with respect to a fully completed fiscal year, the Company shall pay to the Employee in a lump sum in cash within five business days of the date of termination an amount determined as follows:pay
(i) if the Compensation Committee of the Board (acting directly or indirectly through any committee or subcommittee) shall have already determined the amount of such annual bonus, the greater of such amount or the amount provided under Section 3.2(b) hereof shall be paid, and (ii) if the Board Compensation Committee shall not have already determined the amount of such annual bonus, the amount to be paid shall be the greater of the amount provided under Section 3.2(b) hereof or the annual bonus that the Employee would have earned with respect to such completed fiscal year, based solely upon the actual level of achievement of the objective performance goals established with respect to such bonus and assuming the achievement of 100% elimination of any subjective performance goals or criteria evaluations otherwise applicable with respect to such bonus; provided, however, that, if the Employee has in effect a deferral election with respect to any percentage of the annual bonus which would otherwise become payable with respect to such completed fiscal year, such lump sum payment shall be reduced by an amount equal to such percentage times the lump sum payment (which reduction amount shall be deferred in accordance with such election); provided, further, that any payment under this subsection (iii) (or any payment under any other provision of this Agreement calculated by reference to prior or target bonus amounts) shall be payable notwithstanding any provision to the contrary set forth in any bonus plan or program of the Company;
(iv) for a period of three years thirty-six (36) months following the date of termination of employment, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy employment (the "Continuation Period"), the Company shall at its expense continue on behalf of the Employee and his dependents and beneficiaries the life insurance, disability, medical, dental and hospitalization benefits (including any benefit under any individual benefit arrangement that covers medical, dental or hospitalization expenses not otherwise covered under any general Company plan) provided (x) to the Employee at any time during the one120-year day period prior to the Change in Control or at any time thereafter or (y) to other similarly-similarly situated employees executives who continue in the employ of the Company or its Affiliates during the Continuation Period. The coverage and benefits (including deductibles and costs) provided in this Section 3.3(a)(iv) during the Continuation Period shall be no less favorable to the Employee and his dependents and beneficiaries beneficiaries, than the most favorable of such coverages and benefits during any of the periods referred to in clauses (x) or (y) aboveabove ; provided, however, in the event of the disability of the Employee during the Continuation Period, disability benefits shall, to the maximum extent possible, shall not be paid for the Continuation Period but shall instead commence immediately following the end of the Continuation Period. For purposes In addition, if Employee has reached age 52 and has completed seven years of determining eligibility (but not service at the time of commencement a Change of benefitsControl, Employee shall automatically become vested in the post-retirement benefits provided under the Tidewater Group Welfare Benefits Plan (the "GWB Plan") and be entitled to receive, following termination of employment with the Company, all benefits that would be payable to Employee under the GWB Plan or any successor plan of the Employee for retiree benefits pursuant to such plans, practices, programs and policies, Company or its Affiliates had the Employee shall be considered to have remained employed until three years after retired from employment with the Company or one of its Affiliates on the later of the third anniversary of the Change of Control or the Employee's date of termination and to have retired on retirement (as defined in the last day of such periodGWB Plan) from employment with the Company. The Company's obligation hereunder with respect to the foregoing benefits shall be limited to the extent that the Employee obtains any such benefits pursuant to a subsequent employer's benefit plans, in which case the Company may reduce the coverage of any benefits it is required to provide the Employee hereunder as long as the aggregate coverages and benefits of the combined benefit plans is no less favorable to the Employee than the coverages and benefits required to be provided hereunder. At the end of the Continuation Period, the Employee shall have the option to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance owned by the Company that relates specifically to the Employee. The Employee will be eligible for coverage under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") at the end of the Continuation Period or earlier cessation of the Company's obligation under the foregoing provisions of this Section 3.3(a)(iv) (or, if the Employee shall not be so eligible for any reason, the Company will provide equivalent coverage). Exhibit A hereto provides an informational overview of COBRA-required coverage as it exists immediately prior to the execution of the Agreement and is not to be considered part of the Agreement; the actual coverage to be provided pursuant to this Section 3.3(a)(iv) will be the COBRA-required coverage at the time this provision becomes effective;
(v) the Employee shall immediately become fully (100%) vested in his benefit (as such benefit may be increased pursuant to Sections 3.3(a) (vii) and 3.3(a)(viii) hereof) under each supplemental or excess retirement plan of the Company at its cost shall provide in which the Employee was a participant, including, but not limited to the Tidewater Inc. Supplemental Executive Retirement Plan (the "SERP") , the Supplemental Savings Plan and any successor plans (collectively, the "Supplemental Plans");
(vi) if, prior to the Change of Control, in a form and manner reasonably satisfactory to the Company, the Employee outplacement assistance shall have elected that his benefits under the Supplemental Plans be paid in a lump sum in cash within five business days of the date of any termination of his employment described in this Section 3.3(a), such benefits (as such benefits may be increased pursuant to Sections 3.3(a) (vii) and 3.3(a)(viii) hereof) shall be so paid, notwithstanding the payment provisions of the Supplemental Plans and any payment or distribution elections made by a reputable firm specializing in the Employee prior to such services lump sum election;
(vii) the Company shall contribute to the Tidewater Inc. Executives' Supplemental Retirement Trust between the Company and Hibernia National Bank, as amended and restated effective January 1, 1993, and subsequently amended, for the period beginning with Employee's account in cash within five business days of the date of termination of employment and ending upon an amount equal to the lapse then present value of the Employment Termactuarial equivalent of the additional benefits, if any, to which the Employee would be entitled under the Tidewater Inc. Pension Plan, the SERP and any other qualified or non- qualified defined benefit plan maintained by the Company and covering the Employee, regardless of the vesting requirements thereof, after giving the Employee, for purposes of calculating the benefits due Employee under such plans, (a) full service credit for a three-year period following the Change of Control and (b) compensation credit for each of such three years, with the compensation for each year being calculated by dividing the amount that the Employee will be entitled to receive under Section 3.3(a)(i) hereof by three; notwithstanding any SERP provision regarding accrual of benefits, such additional benefits shall be treated for all purposes as increasing the benefit of the Employee under the SERP and payment of the increased benefit shall be governed by the terms of the SERP, unless the Employee has made an effective election for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an effective payment election at the time of execution of the Prior Agreement with respect to such additional benefits;
(vii) the Company shall contribute to the trust under the Xxxxxxx Xxxxx Non-Qualified Deferred Compensation Plan Trust Agreement between the Company and Xxxxxxx Xxxxx Trust Company of America made June 26, 1997, as subsequently amended, for the Employee's account in cash within five business days of the date of termination of employment an amount equal to the amount of employer contributions that would have been made on the Employee's behalf if the Employee had continued to participate in the Company's Savings Plan, the Company's Supplemental Savings Plan and any other qualified or non-qualified defined contribution plan maintained by the Company until the third anniversary of the Change of Control. Such contribution shall, in the case of a qualified plan, be calculated as if the Employee were fully vested and participating to the maximum extent permitted by such plan and, in the case of a non-qualified plan, be calculated on the same basis as the Employee was participating in such plans and, in all cases, be calculated on the basis of the Employee's Base Salary (determined in accordance with Section 3.2(a) hereof) at the time of the Change of Control or at the date of termination, whichever is greater; notwithstanding any Supplemental Savings Plan provision regarding accrual of benefits, such contribution shall be treated for all purposes as increasing the benefit of the Employee under the Supplemental Savings Plan and payment of the increased benefit shall be governed by the terms of the Supplemental Savings Plan, unless the Employee has made an effective election for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an effective payment election at the time of execution of the Prior Agreement with respect to such contribution; and
(viix) to the extent that Employee is not fully vested in his accrued benefits under the Pension Plan, the Savings Plan or any other qualified plan maintained by the Company, at the time of termination of employment, the Company shall discharge its obligations contribute to the trust for the Supplemental Plan that supplements the respective qualified plan, within five business days of the date of termination of employment, an amount in cash equal to the unvested but accrued benefits under such plans (calculated as the present value of the actuarial equivalent thereof in the case of any qualified defined benefit plan) as of the date of termination of employment; notwithstanding the provisions of any qualified plan or Supplemental Plan regarding accrual of benefits, such contribution shall be treated for all purposes as increasing the benefit of the Employee under the Supplemental Plan which supplements the respective qualified plan, and payment of the increased benefit shall be governed by the terms of such Supplemental Plan, unless the Employee has made an effective election for a lump sum payment in accordance with Section 3.3(a)(vi) hereof or an effective payment election at the time of execution of the Prior Agreement with respect to such contribution. The payments and benefits provided in this Section 3.3(a) and under all other applicable sections of this Article IIIthe Company's employee benefit and compensation plans shall be without regard to any amendment made after any Change of Control to any such plan, including Sections 3.4, 3.5, 3.6 which amendment adversely affects in any manner the computation of payments and 3benefits due the Employee under such plan or the time or manner of payment of such payments and benefits . After a Change of Control no discretionary power of the Board or any committee thereof shall be used in a way (and no ambiguity in any such plan shall be construed in a way) which adversely affects in any manner any right or benefit of the Employee under any such plan.
Appears in 1 contract
