Payments and Benefits. If an Event occurs during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3): (a) If at the time of, or at any time after, the occurrence of the First Event and before the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g), (1) shall be entitled to receive from the Company or its successor, upon such termination of employment with the Company or its successor, a cash payment in an amount equal to three times the sum of (A) the Executive's then-current annual base salary and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to the Executive by the Company or its successor in a lump sum at the time of such termination of employment; and (2) shall be entitled for three years after the termination of the Executive's employment with the Company to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before the First Event as if he were an employee of the Company during such three-year period; provided however, that if the Executive's participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the Executive would be entitled to receive under such plan or program as if he were not barred from participation. (b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment. (c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. (d) If at any time from the date of the First Event until the end of the Transition Period, (1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability; (2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event; (3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event; (4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof; (5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or (6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination." (e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e). (f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise. (g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction. (h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 4 contracts
Samples: Management Agreement (Buffets Inc), Management Agreement (Buffets Inc), Management Agreement (Buffets Inc)
Payments and Benefits. If an (a) Commencing not later than thirty (30) days after the Triggering Event, and subject to Executive's compliance with Section 7 of this Agreement, the Company shall pay to Executive, in installments no less frequently than monthly, during the two year period following the Triggering Event occurs during (but not later than the last day of the Term of this Agreement), a monthly amount equal to one-twelfth (1/12) of Executive's total cash compensation received from the Company during calendar year 1997 (including both base annual salary and bonus, if any). The foregoing payments shall be reduced, to the extent necessary, so that the sum of payments made pursuant to this Section 4(a), when added to the total cash compensation to which the Executive is then entitled by virtue of other employment, will not exceed, for any twelve (12) month period, the Executive's total cash compensation received from the Company during calendar year 1997 (including both base annual salary and bonus, if any).
(b) During the period that payments are due to Executive pursuant to Section 4(a), and subject to Executive's compliance with Section 7 of this Agreement, Executive shall be entitled to receive from the Company or its successor (health, life and disability insurance benefits which includes any person acquiring all or substantially all are no less, in the aggregate, than the amount of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1) shall be entitled to receive from the Company or its successor, upon such termination of employment with the Company or its successor, a cash payment in an amount equal to three times the sum of (A) the Executive's then-current annual base salary and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to the Executive by the Company or its successor in a lump sum at the time of such termination of employment; and
(2) shall be entitled for three years after the termination of the Executive's employment with the Company to participate in any health, disability and life insurance plan or program in which the Executive was is entitled to participate immediately before on the First Event as if he were an employee date of this Agreement. Notwithstanding the Company during such three-year period; provided howeverforegoing, that if the Executive's participation in any such Executive obtains other full-time employment, which employment provides equivalent health, life and disability or life insurance plan or program of the Company is barredbenefits, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for described in this Section 3 4(b) shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employmentcease.
(c) The Company may withhold from any payments or benefits due under this Agreement all federal, state, city, or other taxes as shall also pay be required pursuant to any law or governmental regulation or ruling. In no event shall the Executive all legal fees and expenses incurred by Company be obligated to make any payment or provide any benefits pursuant to Section 4(a) or 4(b) hereof after the Executive as a result last day of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by the Term of this Agreement.
(d) If at In the event Executive becomes entitled to receive the payments or benefits specified in this Agreement, he will be deemed to have waived the right to receive any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not severance pay to which he might otherwise be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits entitled under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee present or any future severance benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control policy of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e)affiliate.
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Senior Executive Agreement (Hanover Foods Corp /Pa/), Senior Executive Agreement (Hanover Foods Corp /Pa/)
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company Company, the Bank or its successor either of their successors (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the CompanyCompany or the Bank) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition PeriodPeriod (as defined in Section 4(d)), the employment of the Executive with the Company or the Bank is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company or the Bank for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1i) shall be entitled to receive from the Company Company, the Bank or its successoreither of their successors, upon such termination of employment with the Company Company, the Bank or its successoreither of their successors, a cash payment in an amount equal to three 2.99 times the sum of (A) the Executive's then-current average annual base salary payable by the Bank and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus included in the year gross income for Federal Income Tax purposes of the Executive during the shorter of the period consisting of the five most recently completed taxable years of the Executive ending before the First Event (other than an Event described in Section 2(a)(v) or 2(a)(vi) unless the Executive is terminated prior to the then-current yearoccurrence of an Event described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv)) or that portion of such period during which the Executive was employed by the Company or the Bank (for which purpose compensation for a partial year shall be annualized, in accordance with temporary or final regulations promulgated under Section 280G(d) of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, before determining average annual compensation for the period, such average annual compensation to be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto and such payment to be made to the Executive by the Company Company, the Bank or its successor either of their successors in a lump sum at the time of such termination of employment; and
(2ii) shall be entitled for three two years after the termination of the Executive's employment with the Company or the Bank to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he were an employee of the Company or the Bank during such threetwo-year periodperiod (except, with respect to health insurance coverage, for those portions remaining during such two-year period that duplicate health insurance coverage that is in place for the Executive under any other policy provided at the expense of another employer); provided however, that if in the event that the Executive's participation in any such health, disability or life insurance plan or program of the Company or the Bank is barred, the CompanyCompany or the Bank, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that which the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company Company, the Bank or one or more of its either of their subsidiaries or its successor successors (including any amounts received before prior to such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the CompanyBank, its subsidiaries or its successor under any other policy or agreement of the Company Bank or its subsidiaries in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to In the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If event that at any time from the date of the First Event until the end of the Transition Period,
(1i) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before prior to the First Event, other than for Cause or on account of Disability;
(2ii) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before prior to the First Event;
(3iii) the Company or the Bank shall fail to provide the Executive with benefits under the Company's either of their pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before prior to the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before prior to the First Event;
(4iv) the Company Bank shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5v) the Company or the Bank shall require the Executive to relocate to any place other than a location within 30 thirty-five miles of the location at which the Executive performed his primary duties immediately before prior to the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 thirty-five miles of the location of the principal executive offices immediately before prior to the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then or a termination of employment with the Company or the Bank by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(ed) Notwithstanding any provision of this Agreement to the contrary, contrary contained herein except the last sentence of this Section 3(e3(d), if the lump-lump sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a)) hereof, either alone or together with other payments in the nature of compensation to the Executive that which are contingent on a change in the ownership or effective control of the Company or the Bank or in the ownership of a substantial portion of the assets of the Company or the Bank or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-lump sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company or the Bank for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive Company or the Bank in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e3(d) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after subsequent to the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e3(d) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after subsequent to the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e3(d).
(fe) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(23(a)(ii) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(hf) The obligations of the Company and the Bank under this Section 3 shall survive the termination of this Agreement.
Appears in 2 contracts
Samples: Change in Control Agreement (HMN Financial Inc), Change in Control Agreement (HMN Financial Inc)
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company Company, the Bank or its successor either of their successors (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the CompanyCompany or the Bank) a cash payment and other benefits on the following basis (unless the Executive's ’s employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "“First Event"”), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition PeriodPeriod (as defined in Section 4(d)), the employment of the Executive with the Company or the Bank is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company or the Bank for Cause), the Executive (or the Executive's ’s legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1i) shall be entitled to receive from the Company Company, the Bank or its successoreither of their successors, upon such termination of employment with the Company Company, the Bank or its successoreither of their successors, a cash payment in an amount equal to three 2.99 times the sum of (A) the Executive's then-current average annual base salary payable by the Bank and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus included in the year gross income for Federal Income Tax purposes of the Executive during the shorter of the period consisting of the five most recently completed taxable years of the Executive ending before the First Event (other than an Event described in Section 2(a)(v) or 2(a)(vi) unless the Executive is terminated prior to the then-current yearoccurrence of an Event described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv)) or that portion of such period during which the Executive was employed by the Company or the Bank (for which purpose compensation for a partial year shall be annualized, in accordance with temporary or final regulations promulgated under Section 280G(d) of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, before determining average annual compensation for the period, such average annual compensation to be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto and such payment to be made to the Executive by the Company Company, the Bank or its successor either of their successors in a lump sum at the time of such termination of employment; and
(2ii) shall be entitled for three two years after the termination of the Executive's ’s employment with the Company or the Bank to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he were an employee of the Company or the Bank during such threetwo-year periodperiod (except, with respect to health insurance coverage, for those portions remaining during such two-year period that duplicate health insurance coverage that is in place for the Executive under any other policy provided at the expense of another employer); provided however, that if in the event that the Executive's ’s participation in any such health, disability or life insurance plan or program of the Company or the Bank is barred, the CompanyCompany or the Bank, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that which the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company Company, the Bank or one or more of its either of their subsidiaries or its successor successors (including any amounts received before prior to such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the CompanyBank, its subsidiaries or its successor under any other policy or agreement of the Company Bank or its subsidiaries in the event of involuntary termination of Executive's ’s employment.
(c) The Company shall also pay to In the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If event that at any time from the date of the First Event until the end of the Transition Period,
(1i) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's ’s status immediately before prior to the First Event, other than for Cause or on account of Disability;
(2ii) the Executive's ’s annual base salary or bonus formula shall be reduced from the Executive's ’s annual base salary or bonus formula in effect immediately before prior to the First Event;
(3iii) the Company or the Bank shall fail to provide the Executive with benefits under the Company's either of their pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before prior to the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before prior to the First Event;
(4iv) the Company Bank shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5v) the Company or the Bank shall require the Executive to relocate to any place other than a location within 30 thirty-five miles of the location at which the Executive performed his primary duties immediately before prior to the First Event or, if the Executive performed such duties at the Company's ’s principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 thirty-five miles of the location of the principal executive offices immediately before prior to the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then or a termination of employment with the Company or the Bank by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(ed) Notwithstanding any provision of this Agreement to the contrary, contrary contained herein except the last sentence of this Section 3(e3(d), if the lump-lump sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a)) hereof, either alone or together with other payments in the nature of compensation to the Executive that which are contingent on a change in the ownership or effective control of the Company or the Bank or in the ownership of a substantial portion of the assets of the Company or the Bank or otherwise, would constitute a "“parachute payment" ” as defined in Section 280G of the Code or any successor provision thereto, such lump-lump sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company or the Bank for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive Company or the Bank in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e3(d) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after subsequent to the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e3(d) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after subsequent to the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e3(d).
(fe) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(23(a)(ii) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(hf) The obligations of the Company and the Bank under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this AgreementAgreement and the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a), then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):basis:
(a) If at the any time ofwithin 90 days before, or at any time afterupon or after the occurrence of, the occurrence of first Event to occur (the “First Event Event”) and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) 2(d), 2(e), and 3(g2(f),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three one (1) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company for the fiscal year preceding the First Event. If the fiscal year preceding the First Event is FY09 or earlier, the cash bonus or cash incentive compensation value shall be the actual amount received or $60,000, whichever is greater. Any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum on the first regular payroll date of the Company or its successor in a lump sum at to occur after the time first day of such termination of employment; andthe seventh month following the Termination Date.
(2iii) shall be entitled for three years For a 12-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability insured group health and group life insurance plan or program (but not a self-insured medical expense reimbursement plan within the meaning of Section 105(h) of the Code) in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three12-year month period; provided provided, however, that if in the event that Executive's ’s participation in any such health, disability health or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with insured benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation. Benefits otherwise receivable by Executive pursuant to this Section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 12-month period, and Executive shall promptly report receipt of any such benefits to the Company.
(iv) Any outstanding and unvested stock options granted to Executive shall be accelerated and become immediately exercisable by Executive (and shall remain exercisable for the applicable post-termination exercise periods specified in the applicable stock option agreements), any unvested restricted stock units granted to Executive shall be accelerated and shares of Company stock shall be issued to Executive or cash shall be paid to Executive, as specified in the applicable restricted stock unit agreement, and any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive reimbursement for all legal fees and expenses incurred by the Executive in his lifetime as a result of such terminationtermination and relating to claims not barred by the applicable statutes of limitations, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. The amount of expenses eligible for reimbursement hereunder during any given calendar year shall not affect the expenses eligible for reimbursement in any other calendar year. Executive shall submit verification of expenses to the Company within 60 days from the date the expense was incurred, and the Company shall reimburse eligible expenses within 30 days thereafter, but in any case no later than the last day of the calendar year following the calendar year in which the expense was incurred. The right to reimbursement of legal fees and expenses hereunder may not be exchanged for cash or any other benefit.
(c) In addition to all other amounts payable to Executive under this Section 2, Executive shall be entitled to receive all benefits payable to Executive under any other plan or agreement relating to retirement benefits, pursuant to the terms and conditions of such plan or agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Executive executes, and there shall be effective following any statutory period for revocation or rescission, a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets, and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated; provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which he is entitled under this Agreement as a result of such Event or Executive’s rights to indemnification under applicable law, the extent such payments would in the opinion charter documents of the Company's independent certified public accountants prevent them from providing , any insurance policy maintained by the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of or any written agreement between the Company under this Section 3 shall survive the termination of this Agreement.and Executive; and
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this AgreementAgreement and the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a), then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):basis:
(a) If at the any time ofwithin 90 days before, or at any time afterupon or after the occurrence of, the occurrence of first Event to occur (the “First Event Event”) and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) 2(d), 2(e), and 3(g2(f),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three one (1) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company for the fiscal year preceding the First Event. If the fiscal year preceding the First Event is FY08 or earlier, the cash bonus or cash incentive compensation value shall be the actual amount received or $162,500, whichever is greater. Any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum on the first regular payroll date of the Company or its successor in a lump sum at to occur after the time first day of such termination of employment; andthe seventh month following the Termination Date.
(2iii) shall be entitled for three years For a 12-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability insured group health and group life insurance plan or program (but not a self-insured medical expense reimbursement plan within the meaning of Section 105(h) of the Code) in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three12-year month period; provided provided, however, that if in the event that Executive's ’s participation in any such health, disability health or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with insured benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation. Benefits otherwise receivable by Executive pursuant to this Section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 12-month period, and Executive shall promptly report receipt of any such benefits to the Company.
(iv) Any outstanding and unvested stock options granted to Executive shall be accelerated and become immediately exercisable by Executive (and shall remain exercisable for the applicable post-termination exercise periods specified in the applicable stock option agreements), any unvested restricted stock units granted to Executive shall be accelerated and shares of Company stock shall be issued to Executive or cash shall be paid to Executive, as specified in the applicable restricted stock unit agreement, and any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive reimbursement for all legal fees and expenses incurred by the Executive in his lifetime as a result of such terminationtermination and relating to claims not barred by the applicable statutes of limitations, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. The amount of expenses eligible for reimbursement hereunder during any given calendar year shall not affect the expenses eligible for reimbursement in any other calendar year. Executive shall submit verification of expenses to the Company within 60 days from the date the expense was incurred, and the Company shall reimburse eligible expenses within 30 days thereafter, but in any case no later than the last day of the calendar year following the calendar year in which the expense was incurred. The right to reimbursement of legal fees and expenses hereunder may not be exchanged for cash or any other benefit.
(c) In addition to all other amounts payable to Executive under this Section 2, Executive shall be entitled to receive all benefits payable to Executive under any other plan or agreement relating to retirement benefits, pursuant to the terms and conditions of such plan or agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Executive executes, and there shall be effective following any statutory period for revocation or rescission, a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets, and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated; provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which he is entitled under this Agreement as a result of such Event or Executive’s rights to indemnification under applicable law, the extent such payments would in the opinion charter documents of the Company's independent certified public accountants prevent them from providing , any insurance policy maintained by the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of or any written agreement between the Company under this Section 3 shall survive the termination of this Agreement.and Executive; and
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this AgreementAgreement and the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a), then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):basis:
(a) If at the any time ofwithin 60 days before, or at any time afterupon or after the occurrence of, the occurrence of first Event to occur (the “First Event Event”) and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e2(d) and 3(g2(e),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company and reimburse Executive for Executive’s business expenses incurred through the Termination Date, subject to the Company’s normal business expense and travel policies and procedures.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three one (1) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company for the fiscal year preceding the First Event. If the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a) and the Termination Date is on or before December 31, 2012, and the First Event occurs either before such Termination Date or within 60 days after such Termination Date, then any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum on the first regular payroll date of the Company or its successor to occur after the first day of the seventh month following the Termination Date. If the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a) and the Termination Date is on or after January 1, 2013, and the First Event occurs either before such Termination Date (provided the Termination Date occurs prior to the end of the Transition Period) or within 60 days after such Termination Date, then any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum at on the time of such termination of employment; and70th day following the Termination Date.
(2iii) shall be entitled for three years For a 12-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive (and Executive’s eligible dependents) to participate in any health, disability group health and group life insurance plan or program in which the Executive (and Executive’s eligible dependents) was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three12-year month period; provided provided, however, that if in the event that Executive's ’s (or Executive’s eligible dependents) participation in any such health, disability health or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide Executive (or Executive’s eligible dependents, as the Executive case may be) with benefits substantially similar to those that which Executive (or Executive’s eligible dependents, as the Executive case may be) would be entitled to receive under such plan or program as if he Executive (or such dependents) were not barred from participation. Benefits otherwise receivable by Executive pursuant to this Section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 12-month period, and Executive shall promptly report receipt of any such benefits to the Company. To the extent necessary in order for Executive to avoid being subject to tax under section 105(h) of the Code on any payment or reimbursement of medical or dental expenses made to Executive or for Executive’s benefit pursuant to this Section 2(a)(iii), the Company shall impute as taxable income to the Executive an amount equal to that portion of the full actuarial cost of the health care benefit coverages provided to Executive and Executive’s eligible dependents under this Section 2(a)(iii) as exceeds the portion of such cost that is paid for by Executive.
(iv) As of the Termination Date or as of the First Event if the Termination Date precedes the First Event, any outstanding and unvested stock options granted to Executive shall become fully vested and immediately exercisable by Executive (and shall remain exercisable for the applicable post-termination exercise periods specified in the applicable stock option agreements); any unvested restricted stock units granted to Executive shall be accelerated and shares of Company stock shall be issued to Executive or cash shall be paid to Executive, as specified in the applicable restricted stock unit agreement as soon as practicable following the vesting date; any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture; and any performance share units (“PSUs”) that are earned but unvested shall become fully vested and any outstanding PSUs whose applicable performance period includes the Termination Date shall be deemed to be earned at target and vested as of the Termination Date or as of the First Event if the Termination Date precedes the First Event, with all vested PSUs delivered to Executive in stock as soon as practicable following the vesting date. In all events, settlement of all vested restricted stock units and PSUs shall occur within 15 days following the applicable vesting date.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive reimbursement for all legal fees and expenses incurred by the Executive in Executive’s lifetime as a result of such terminationtermination and relating to claims not barred by the applicable statutes of limitations, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. The amount of expenses eligible for reimbursement hereunder during any given calendar year shall not affect the expenses eligible for reimbursement in any other calendar year. Executive shall submit verification of expenses to the Company within 60 days from the date the expense was incurred, and the Company shall reimburse eligible expenses within 30 days thereafter, but in any case no later than the last day of the calendar year following the calendar year in which the expense was incurred. The right to reimbursement of legal fees and expenses hereunder may not be exchanged for cash or any other benefit.
(c) In addition to all other amounts payable to Executive under this Section 2, Executive shall be entitled to receive all benefits payable to Executive under any other plan or agreement relating to retirement benefits, pursuant to the terms and conditions of such plan or agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in Section 2(a)(iii) of this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Within 45 days following Executive’s Termination Date, Executive executes, and there shall be effective following any statutory period for revocation or rescission (which shall not exceed 15 days), a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated (provided that with respect to any individual or agent, such release shall be limited to their official relationship with the Company or any successor); provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which Executive is entitled under this Agreement or, if applicable, the Employment Agreement, or pursuant to any employee benefit plan or arrangement, or Executive’s rights to indemnification under applicable law, the Indemnification Agreement (as a result of such Event to the extent such payments would defined in the opinion Employment Agreement), the charter documents of the Company's independent certified public accountants prevent them from providing Company (or any successor), any insurance policy maintained by the Company with (or any successor) or any written agreement between the Company (or any successor) and Executive; and
(ii) Executive executes an agreement prohibiting Executive for a favorable opinion with respect period of one (1) year following the Termination Date from soliciting, recruiting or inducing, or attempting to the treatment solicit, recruit or induce, any employee of the desired transaction as Company or of any company acquiring the Company or its assets to terminate the employee’s employment, which Executive has satisfied by executing a Pooling Transaction.Proprietary Inventions and Information Agreement on the same date Executive signed this Agreement
(hf) The obligations of the Company under this Section 2 and the provisions of Section 3 shall survive the termination expiration of the Term of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 32):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e2(d) and 3(g2(e),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive's full base salary through the Termination Date at the rate then in effect.
(ii) The Company or its successor, upon such termination of employment with within 90 days after the Company or its successorTermination Date, shall make a cash payment to Executive in an amount equal to three one (1) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company or its successor in a lump sum at for the time of such termination of employment; andfiscal year preceding the First Event.
(2iii) shall be entitled for three years For a 12-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three12-year month period; provided provided, however, that if in the event that Executive's participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation. Benefits otherwise receivable by Executive pursuant to this section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 12-month period, and Executive shall promptly report receipt of any such benefits to the Company.
(iv) Any outstanding and unvested stock options granted to Executive shall be accelerated and become immediately exercisable by Executive (and shall remain exercisable for the terms specified in the applicable stock option agreements) and any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(dc) If at any time from the date of the First Event until the end of the Transition Period,
(1) the In addition to all other amounts payable to Executive under this Section 2, Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled to receive all benefits payable to Executive under this Agreement in the absence of this Section 3(e) any other plan or agreement relating to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e)retirement benefits.
(fd) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Executive executes, and there shall be effective following any statutory period for revocation or rescission, a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets, and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated; provided, however, that the release shall not adversely affect Executive's rights to receive benefits to which he is entitled under this Agreement as a result of such Event or Executive's rights to indemnification under applicable law, the extent such payments would in the opinion charter documents of the Company's independent certified public accountants prevent them from providing , any insurance policy maintained by the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of or any written agreement between the Company under this Section 3 shall survive the termination of this Agreement.and Executive; and
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company Company, the Bank or its successor either of their successors (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the CompanyCompany or the Bank) a cash payment and other benefits on the following basis (unless the Executive's ’s employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "“First Event"”), in which case the Executive shall be entitled to no payment or benefits under this Section 32):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition PeriodPeriod (as defined in Section 3(d)), the employment of the Executive with the Company or the Bank is voluntarily or involuntarily terminated for any reason (unless such provided, however, that a termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company or the Bank for CauseCause does not qualify for benefits under this Agreement), or is a Constructive Involuntary Termination, the Executive (or the Executive's ’s legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1i) shall be entitled to receive from the Company Company, the Bank or its successoreither of their successors, upon such termination of employment with the Company Company, the Bank or its successoreither of their successors, a cash payment in an amount equal to three 2.0 times the sum of the following:
(A) the Executive's then-current annual actual base salary payable by the Bank and included in the gross income for Federal Income Tax purposes of the Executive during the taxable year of the Executive ending before the First Event (other than an Event described in Section 1(a)(v) unless the Executive is terminated prior to the occurrence of an Event described in Section 1(a)(i), 1(a)(ii), 1(a)(iii) or 1(a)(iv)); and
(B) the greater actual bonus payable by the Bank to the Executive with respect to such taxable year (provided, however, that if Executive’s employment is terminated under circumstances described in 2(a) above before calculation and payment of (i) such bonus, then the Executive's annualized then-current year's actual bonus or (ii) the Executive's annual bonus in with respect to the year prior to the then-current year, that precedes such taxable year will be used); such payment to be made to the Executive by the Company Company, the Bank or its successor either of their successors in a lump sum at the time of such termination of employment. The payment provided under this section is intended to be a short-term deferral and thus exempt from Section 409A of the Code; and
(2ii) shall be entitled for three two years after the termination of the Executive's ’s employment with the Company or the Bank to participate in any health, disability and life health insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he were an employee of the Company or the Bank during such threetwo-year period; provided however, period (except for those portions remaining during such two-year period that if the Executive's participation duplicate health insurance coverage that is in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide place for the Executive with benefits substantially similar to those that the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement program provided at the expense of another employer. In the event that Executive’s participation in group health insurance coverage is not possible under any of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive applicable plans and other employee benefit plans and arrangements that laws then in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive officeseffect, the Company shall relocate its principal executive offices will purchase coverage reasonably comparable to any location other than a location within 30 miles of the location of coverage provided under the principal executive offices immediately before plan provided by the First Event; or
(6) Company, to the Company shall require that the extent such coverage is reasonably available, and Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment will cooperate with the Company to obtain the most favorable rate for such coverage for Executive. All such Company-provided premiums or cost of coverage shall be paid directly to the insurance carrier or other provider by the Executive thereafter shall constitute Company. The continued coverage under this section is intended to be a "Constructive Involuntary Termination."reimbursement plan and to comply with Section 409A of the Code. In this regard, the amount of benefits provided during Executive’s taxable year will not affect the benefits provided during any other taxable year, and the right to continued coverage is not subject to liquidation or exchange for another benefit; and
(eiii) Notwithstanding any provision of this Agreement shall be entitled to a lump sum payment in an amount equal to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of amount the Company or in the ownership of a substantial portion Bank would otherwise expend for its share of the assets premiums for 24 months of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such life and disability coverage. Such lump-sum payment and/or such other benefits and payments shall will be reduced (but not below zero) paid to Executive at the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 time of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification Executive’s termination of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's ’s employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "“First Event"”), in which case the Executive shall be entitled to no payment or benefits under this Section 32):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e2(d) and 3(g2(e),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three two (2) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) incentive bonus last paid to Executive from the Executive's annualized then-current year's bonus or (ii) Company preceding the Executive's annual bonus in the year prior to the then-current yearFirst Event or, such payment to be made to the if Executive has not been employed by the Company or its successor in for a lump sum at full fiscal year as of the time of the First Event, Executive’s guaranteed incentive bonus (as described in the letter agreement between Executive and the Company dated February 13, 2007) at target for the fiscal year in which the First Event occurs. Such amount shall be paid to Executive on the first day of the seventh month following the Termination Date or, if later, on the first day of the seventh month following Executive’s “separation from service” as such termination phrase is interpreted under section 409A of employment; andthe Internal Revenue Code and any regulations, rules or guidance thereunder.
(2iii) shall be entitled for three years For a 24-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three24-year month period; provided provided, however, that if in the event that Executive's ’s participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation. Benefits otherwise receivable by Executive pursuant to this section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 24-month period, and Executive shall promptly report receipt of any such benefits to the Company.
(iv) Any outstanding and unvested stock options granted to Executive shall be accelerated and become immediately exercisable by Executive (and shall remain exercisable for the exercise periods specified in the applicable stock option agreements) and any restricted stock units or other equity-based compensation awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture; provided, however, that if the First Event occurs on or before December 31, 2007, then such acceleration or lapse of forfeiture will apply only with respect to equity awards that would have vested or lapsed by their terms within 12 months following the Termination Date.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. Executive will submit to the Company appropriate documentation of such legal fees and expenses within thirty (30) days after they are incurred, and the Company will pay such reimbursements to Executive within ten (10) days thereafter.
(c) In addition to all other amounts payable to Executive under this Section 2, Executive shall be entitled to receive all benefits payable to Executive under any other plan or agreement relating to retirement benefits.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Executive executes, and there shall be effective following any statutory period for revocation or rescission, a release, substantially in the form attached to this Agreement as Exhibit A, that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets, and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated; provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which he is entitled under this Agreement as a result of such Event or Executive’s rights to indemnification under applicable law, the extent such payments would in the opinion charter documents of the Company's independent certified public accountants prevent them from providing , any insurance policy maintained by the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of or any written agreement between the Company under this Section 3 shall survive the termination of this Agreement.and Executive; and
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this AgreementAgreement and the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a), then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):basis:
(a) If at the any time ofwithin 60 days before, or at any time afterupon or after the occurrence of, the occurrence of first Event to occur (the “First Event Event”) and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e2(d) and 3(g2(e),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company and reimburse Executive for his business expenses incurred through the Termination Date, subject to the Company’s normal business expense and travel policies and procedures.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three (3) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event (which in no event shall be less than $675,000.00) plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company for the fiscal year preceding the First Event. If the fiscal year preceding the First Event is FY12 or its successor earlier, the cash bonus or cash incentive compensation value shall be the actual amount received or $450,000.00, whichever is greater. Any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum at on the time of such termination of employment; and70th day following the Termination Date.
(2iii) shall be entitled for three years For an 18-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive (and his eligible dependents) to participate in any health, disability group health and group life insurance plan or program in which the Executive (and his eligible dependents) was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three18-year month period; provided provided, however, that if in the event that Executive's ’s (or his eligible dependents) participation in any such health, disability health or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide Executive (or his eligible dependents, as the Executive case may be) with benefits substantially similar to those that which Executive (or his eligible dependents, as the Executive case may be) would be entitled to receive under such plan or program as if he Executive (or such dependents) were not barred from participation. Benefits otherwise receivable by Executive pursuant to this Section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 18-month period, and Executive shall promptly report receipt of any such benefits to the Company. To the extent necessary in order for Executive to avoid being subject to tax under section 105(h) of the Code on any payment or reimbursement of medical or dental expenses made to him or for his benefit pursuant to this Section 2(a)(iii), the Company shall impute as taxable income to the Executive an amount equal to that portion of the full actuarial cost of the health care benefit coverages provided to him and his eligible dependents under this Section 2(a)(iii) as exceeds the portion of such cost that is paid for by Executive.
(iv) As of the Termination Date or as of the First Event if the Termination Date precedes the First Event, any outstanding and unvested stock options granted to Executive shall become fully vested and immediately exercisable by Executive (and shall remain exercisable for the applicable post-termination exercise periods specified in the applicable stock option agreements); any unvested restricted stock units granted to Executive shall be accelerated and shares of Company stock shall be issued to Executive or cash shall be paid to Executive, as specified in the applicable restricted stock unit agreement as soon as practicable following the vesting date; any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture; and any performance share units (“PSUs”) that are earned but unvested shall become fully vested and any outstanding PSUs whose applicable performance period includes the Termination Date shall be deemed to be earned at target and vested as of the Termination Date or as of the First Event if the Termination Date precedes the First Event, with all vested PSUs delivered to Executive in stock as soon as practicable following the vesting date. In all events, settlement of all vested restricted stock units and PSUs shall occur within 15 days following the applicable vesting date.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive reimbursement for all legal fees and expenses incurred by the Executive in his lifetime as a result of such terminationtermination and relating to claims not barred by the applicable statutes of limitations, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. The amount of expenses eligible for reimbursement hereunder during any given calendar year shall not affect the expenses eligible for reimbursement in any other calendar year. Executive shall submit verification of expenses to the Company within 60 days from the date the expense was incurred, and the Company shall reimburse eligible expenses within 30 days thereafter, but in any case no later than the last day of the calendar year following the calendar year in which the expense was incurred. The right to reimbursement of legal fees and expenses hereunder may not be exchanged for cash or any other benefit.
(c) In addition to all other amounts payable to Executive under this Section 2, Executive shall be entitled to receive all benefits payable to Executive under any other plan or agreement relating to retirement benefits, pursuant to the terms and conditions of such plan or agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in Section 2(a)(iii) of this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Within 45 days following Executive’s Termination Date, Executive executes, and there shall be effective following any statutory period for revocation or rescission (which shall not exceed 15 days), a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated (provided that with respect to any individual or agent, such release shall be limited to their official relationship with the Company or any successor); provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which he is entitled under this Agreement or, if applicable, the Employment Agreement, or pursuant to any employee benefit plan or arrangement, or Executive’s rights to indemnification under applicable law, the Indemnification Agreement (as a result of such Event to the extent such payments would defined in the opinion Employment Agreement), the charter documents of the Company's independent certified public accountants prevent them from providing Company (or any successor), any insurance policy maintained by the Company with (or any successor) or any written agreement between the Company (or any successor) and Executive; and
(ii) Executive executes an agreement prohibiting Executive for a favorable opinion with respect period of two (2) years following the Termination Date from soliciting, recruiting or inducing, or attempting to the treatment solicit, recruit or induce, any employee of the desired transaction Company or of any company acquiring the Company or its assets to terminate the employee’s employment, which Executive has satisfied by executing a Proprietary Information and Inventions Agreement the same date as a Pooling TransactionExecutive signs this Agreement.
(hf) The obligations of the Company under this Section 2 and the provisions of Section 3 shall survive the termination expiration of the Term of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this AgreementAgreement and the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a), then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):basis:
(a) If at the any time ofwithin 60 days before, or at any time afterupon or after the occurrence of, the occurrence of first Event to occur (the “First Event Event”) and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e2(d) and 3(g2(e),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company and reimburse Executive for Executive’s business expenses incurred through the Termination Date, subject to the Company’s normal business expense and travel policies and procedures.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three one (1) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company for the fiscal year preceding the First Event. If the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a) and the Termination Date is on or before December 31, 2012, and the First Event occurs either before such Termination Date or within 60 days after such Termination Date, then any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum on the first regular payroll date of the Company or its successor to occur after the first day of the seventh month following the Termination Date. If the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a) and the Termination Date is on or after February 1, 2013, and the First Event occurs either before such Termination Date (provided the Termination Date occurs prior to the end of the Transition Period) or within 60 days after such Termination Date, then any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum at on the time of such termination of employment; and70th day following the Termination Date.
(2iii) shall be entitled for three years For a 12-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive (and Executive’s eligible dependents) to participate in any health, disability group health and group life insurance plan or program in which the Executive (and Executive’s eligible dependents) was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three12-year month period; provided provided, however, that if in the event that Executive's ’s (or Executive’s eligible dependents) participation in any such health, disability health or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide Executive (or Executive’s eligible dependents, as the Executive case may be) with benefits substantially similar to those that which Executive (or Executive’s eligible dependents, as the Executive case may be) would be entitled to receive under such plan or program as if he Executive (or such dependents) were not barred from participation. Benefits otherwise receivable by Executive pursuant to this Section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 12-month period, and Executive shall promptly report receipt of any such benefits to the Company. To the extent necessary in order for Executive to avoid being subject to tax under section 105(h) of the Code on any payment or reimbursement of medical or dental expenses made to Executive or for Executive’s benefit pursuant to this Section 2(a)(iii), the Company shall impute as taxable income to the Executive an amount equal to that portion of the full actuarial cost of the health care benefit coverages provided to Executive and Executive’s eligible dependents under this Section 2(a)(iii) as exceeds the portion of such cost that is paid for by Executive.
(iv) As of the Termination Date or as of the First Event if the Termination Date precedes the First Event, any outstanding and unvested stock options granted to Executive shall become fully vested and immediately exercisable by Executive (and shall remain exercisable for the applicable post-termination exercise periods specified in the applicable stock option agreements); any unvested restricted stock units granted to Executive shall be accelerated and shares of Company stock shall be issued to Executive or cash shall be paid to Executive, as specified in the applicable restricted stock unit agreement as soon as practicable following the vesting date; any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture; and any performance share units (“PSUs”) that are earned but unvested shall become fully vested and any outstanding PSUs whose applicable performance period includes the Termination Date shall be deemed to be earned at target and vested as of the Termination Date or as of the First Event if the Termination Date precedes the First Event, with all vested PSUs delivered to Executive in stock as soon as practicable following the vesting date. In all events, settlement of all vested restricted stock units and PSUs shall occur within 15 days following the applicable vesting date.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive reimbursement for all legal fees and expenses incurred by the Executive in Executive’s lifetime as a result of such terminationtermination and relating to claims not barred by the applicable statutes of limitations, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. The amount of expenses eligible for reimbursement hereunder during any given calendar year shall not affect the expenses eligible for reimbursement in any other calendar year. Executive shall submit verification of expenses to the Company within 60 days from the date the expense was incurred, and the Company shall reimburse eligible expenses within 30 days thereafter, but in any case no later than the last day of the calendar year following the calendar year in which the expense was incurred. The right to reimbursement of legal fees and expenses hereunder may not be exchanged for cash or any other benefit.
(c) In addition to all other amounts payable to Executive under this Section 2, Executive shall be entitled to receive all benefits payable to Executive under any other plan or agreement relating to retirement benefits, pursuant to the terms and conditions of such plan or agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in Section 2(a)(iii) of this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Within 45 days following Executive’s Termination Date, Executive executes, and there shall be effective following any statutory period for revocation or rescission (which shall not exceed 15 days), a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated (provided that with respect to any individual or agent, such release shall be limited to their official relationship with the Company or any successor); provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which Executive is entitled under this Agreement or, if applicable, the Transition Agreement, or pursuant to any employee benefit plan or arrangement, or Executive’s rights to indemnification under applicable law, the Indemnification Agreement (as a result of such Event to the extent such payments would defined in the opinion Transition Agreement), the charter documents of the Company's independent certified public accountants prevent them from providing Company (or any successor), any insurance policy maintained by the Company with (or any successor) or any written agreement between the Company (or any successor) and Executive; and
(ii) Executive executes an agreement prohibiting Executive for a favorable opinion with respect period of one (1) year following the Termination Date from soliciting, recruiting or inducing, or attempting to the treatment solicit, recruit or induce, any employee of the desired transaction as Company or of any company acquiring the Company or its assets to terminate the employee’s employment, which Executive has satisfied by executing a Pooling TransactionProprietary Inventions and Information Agreement on the same date Executive signed this Agreement.
(hf) The obligations of the Company under this Section 2 and the provisions of Section 3 shall survive the termination expiration of the Term of this Agreement.
Appears in 1 contract
Payments and Benefits. If an Event occurs during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at Executive shall continue to receive his regular base salary and continue to participate in all benefit plans and programs of the time of, or at any time afterCompany through the Retirement Date. On the Retirement Date, the occurrence of the First Event and before the end of the Transition PeriodCompany shall pay Executive, in one lump sum in cash, the employment amount of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1) shall be entitled to receive base salary he otherwise would have received from the Company or its successorRetirement Date through December 31, upon such termination of employment with the Company or its successor, a cash payment in 1999 as well as an amount equal to three times all accrued but unpaid vacation pay at the sum of Retirement Date, reduced by all applicable Federal (A) at the Executive's then-current annual base salary 28% rate), state and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to local income and employment taxes that must be made to the Executive withheld by the Company or its successor in a lump sum at the time of such termination of employment; and
(2) shall be entitled for three years after the termination of the Executive's employment with the Company to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before the First Event as if he were an employee of the Company during such three-year period; provided however, that if the Executive's participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the Executive would be entitled to receive under such plan or program as if he were not barred from participation"Withholding Taxes").
(b) The payments provided for On the eighth day following the execution of the Release, as defined below, without revocation, but in this Section 3 no event earlier than January 2, 2000, the Company shall be pay to Executive in addition to any salary or other remuneration otherwise payable to cash the Executive on account sum of employment $2,400,000, reduced by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employmentWithholding Taxes.
(c) The Company shall also pay to Executive, no sooner than January 2, 2000 and no later than March 31, 2000, in one lump sum in cash, all amounts due Executive under the Company's Deferred Compensation Plan and the single sum present value of the benefit due Executive all legal fees under the Company's Supplemental Executive Retirement Plan (the "SERP"), determined under the normal terms of each such plan; provided, however, that the Company shall cause the determination of the benefit due to Executive under the SERP to be made by taking into account, and expenses incurred by the Executive treating as a result full year of such terminationcompensation, all compensation paid to Executive (including all such fees and expenses, if any, incurred the payment made under subsection (a) above) for (in contesting the case of any 1999 bonus) or disputing any such termination or during 1999. The payment under Section 2(b) of this Agreement shall not be taken into account in seeking determining the benefit due to obtain or enforce any right or benefit provided by this AgreementExecutive under the SERP.
(d) If at any time from the date of the First Event until the end of the Transition Period,
No further payments or benefits shall be made or provided to Executive except for (1i) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Eventrights to options, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with restricted stock, performance units and benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee terms of the written benefit plans and arrangements that or programs, sponsored by the Company, in the aggregate for all such plans and arrangements are at least as favorable which Executive participated prior to the Executive Retirement Date, (ii) continued provision of cellular telephone service, at the same level as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption provides senior executives generally, for the 36 months following the Retirement Date and (iii) as soon as practicable following the execution of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive officesAgreement, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business pay Executive's counsel all documented legal fees and expenses, to a substantially greater extent than required immediately before maximum of $20,000, arising in representing Executive in the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision preparation of this Agreement and, particularly, in advising Executive as to the contrary, except the last sentence consequences to him of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date 3 of this Agreement shall, however, reduce and the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e)Release attached hereto as Annex 1.
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Retirement Agreement (York International Corp /De/)
Payments and Benefits. If an any Event occurs shall occur during the Term of this AgreementAgreement and the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a), then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):basis:
(a) If at the any time ofwithin 90 days before, or at any time afterupon or after the occurrence of, the occurrence of first Event to occur (the “First Event Event”) and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) 2(d), 2(e), and 3(g2(f),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three one (1) times *[for CEO: two (2) times] the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company for the fiscal year preceding the First Event. Any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum on the first regular payroll date of the Company or its successor in a lump sum at to occur after the time first day of such termination of employment; andthe seventh month following the Termination Date.
(2iii) shall be entitled For a 12-month *[for three years CEO: 24-month] period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability insured group health and group life insurance plan or program (but not a self-insured medical expense reimbursement plan within the meaning of Section 105(h) of the Code) in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three12-year month *[for CEO: 24-month] period; provided provided, however, that if in the event that Executive's ’s participation in any such health, disability health or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with insured benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration . Benefits otherwise payable to the receivable by Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e2(a)(iii) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent comparable benefits are received by Executive from another employer or other third party during such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.12-month *[for CEO:
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company Company, the Bank or its successor either of their successors (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the CompanyCompany or the Bank) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition PeriodPeriod (as defined in Section 4(d)), the employment of the Executive with the Company or the Bank is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company or the Bank for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1i) shall be entitled to receive from the Company Company, the Bank or its successoreither of their successors, upon such termination of employment with the Company Company, the Bank or its successoreither of their successors, a cash payment in an amount equal to three 2.0 times the sum of (A) the Executive's then-current average annual base salary payable by the Bank and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus included in the year gross income for Federal Income Tax purposes of the Executive during the shorter of the period consisting of the five most recently completed taxable years of the Executive ending before the First Event (other than an Event described in Section 2(a)(v) or 2(a)(vi) unless the Executive is terminated prior to the then-current yearoccurrence of an Event described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv)) or that portion of such period during which the Executive was employed by the Company or the Bank (for which purpose compensation for a partial year shall be annualized, in accordance with temporary or final regulations promulgated under Section 280G(d) of the Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision thereto, before determining average annual compensation for the period, such average annual compensation to be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto and such payment to be made to the Executive by the Company Company, the Bank or its successor either of their successors in a lump sum at the time of such termination of employment; and
(2ii) shall be entitled for three years one year after the termination of the Executive's employment with the Company or the Bank to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he were an employee of the Company or the Bank during such threeone-year periodperiod (except, with respect to health insurance coverage, for those portions remaining during such one-year period that duplicate health insurance coverage that is in place for the Executive under any other policy provided at the expense of another employer); provided however, that if in the event that the Executive's participation in any such health, disability or life insurance plan or program of the Company or the Bank is barred, the CompanyCompany or the Bank, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that which the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company Company, the Bank or one or more of its either of their subsidiaries or its successor successors (including any amounts received before prior to such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the CompanyBank, its subsidiaries or its successor under any other policy or agreement of the Company Bank or its subsidiaries in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to In the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If event that at any time from the date of the First Event until the end of the Transition Period,
(1i) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before prior to the First Event, other than for Cause or on account of Disability;
(2ii) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before prior to the First Event;
(3iii) the Company or the Bank shall fail to provide the Executive with benefits under the Company's either of their pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before prior to the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before prior to the First Event;
(4iv) the Company Bank shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5v) the Company or the Bank shall require the Executive to relocate to any place other than a location within 30 thirty-five miles of the location at which the Executive performed his primary duties immediately before prior to the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 thirty-five miles of the location of the principal executive offices immediately before prior to the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then or a termination of employment with the Company or the Bank by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(ed) Notwithstanding any provision of this Agreement to the contrary, contrary contained herein except the last sentence of this Section 3(e3(d), if the lump-lump sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a)) hereof, either alone or together with other payments in the nature of compensation to the Executive that which are contingent on a change in the ownership or effective control of the Company or the Bank or in the ownership of a substantial portion of the assets of the Company or the Bank or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-lump sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company or the Bank for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive Company or the Bank in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e3(d) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after subsequent to the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e3(d) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after subsequent to the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e3(d).
(fe) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(23(a)(ii) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(hf) The obligations of the Company and the Bank under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition PeriodPeriod (as defined in Section 4(e)), the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1i) shall be entitled to receive from the Company or its successor, upon such termination of employment with the Company or its successor, a cash payment in an amount equal to three times the sum of Severance Payment (A) the Executive's then-current annual base salary and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus as defined in the year prior to the then-current year, such payment to be made to the Executive by the Company or its successor in a lump sum at the time of such termination of employmentSection 4(d)); and
(2ii) shall be entitled for three years after during the termination of the Executive's employment with the Company Transition Period to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he were an employee of the Company during such three-year periodTransition Period (except, with respect to health insurance coverage, for those portions remaining during such Transition Period that duplicate health insurance coverage that is in place for the Executive under any other policy provided at the expense of another employer); provided however, that if in the event that the Executive's participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that which the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any other severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If In the event that at any time from the date of the First Event until the end of the Transition Period,
(1i) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before prior to the First Event, other than for Cause or on account of Disability;
(2ii) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before prior to the First Event;
(3iii) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before prior to the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before prior to the First Event;
(4iv) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5v) the Company shall require the Executive to relocate to any place other than a location within 30 twenty-five miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices prior to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6vi) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before prior to the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b3(a)(ii)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(hf) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Change in Control Agreement (Smithway Motor Xpress Corp)
Payments and Benefits. If an Event occurs during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company for Cause)entitled to payments and benefits pursuant to Paragraph 2 above, the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1) shall be entitled entitled:
(i) to immediately receive from the Company or its successor, upon such termination of employment with the Company or its successor, a cash payment in an amount equal to three times the sum of (A1) the Executive's then-current annual base salary received by the Executive during the last preceding calendar year and (B2) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's highest annual bonus in the year prior to the then-current year, such payment to be made to award (BEIP) received by the Executive by during the Company or its successor in a lump sum at the time of such termination of employmentprevious five years; and
(2ii) shall be entitled for three years after the termination "Involuntary Termination" or "Constructive Involuntary Termination" of the Executive's employment with the Company Company, to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event "Change of Control Event" as if he were an employee of the Company during such three-year period; provided however, that if in the event that the Executive's participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that which the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) Notwithstanding anything to the contrary above, the Executive shall not be entitled to benefits under subparagraph a(i) or a(ii) above for any time following the Executive's sixty-fifth (65th) birthday.
(c) The payments provided for in this Section Paragraph 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before prior to such termination of employment for personal services rendered after the occurrence of the First "Change of Control Event") but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination "Involuntary Termination" of Executive's employment.
(cd) The Company shall also pay to the Executive all legal fees and expenses reasonably incurred by the Executive as a result of such termination, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(de) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula it shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements determined that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, Payment" would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under by Section 4999 of the Internal Revenue Code of 1986 as amended (hereafter the Code) (or any successor provision thereto) interest or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (penalties related thereto or any successor provision thereto), the Executive shall be entitled to receive a "Gross-Up Payment". The Notwithstanding the foregoing provisions of this Paragraph 3(e), if it shall be determined that the Executive in good faith shall determine is entitled to a "Gross-Up Payment", but that the total "Payments" do not exceed 120% of the maximum amount of "Payments" that could be paid to the Executive without incurring any reduction to Excise Tax, (the "Reduced Amount"), then no "Gross-Up Payment" shall be made pursuant to this Section 3(e) the Executive and shall select from among the foregoing benefits and payments those which "Payment", in the aggregate, shall be reducedreduced to the "Reduced Amount". No modification ofIn reducing the "Payment", or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would may specify what components of the "Payment" shall not be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e)paid.
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section Paragraph 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section Paragraph 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section Paragraph 3 shall survive the termination of this Agreement.
Appears in 1 contract
Samples: Management Contract (Bemis Co Inc)
Payments and Benefits. If an any Event occurs shall occur during the Term of this AgreementAgreement and the employment of Executive with the Company is voluntarily or involuntarily terminated under circumstances specified in Section 2(a), then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3):basis:
(a) If at the any time ofwithin 90 days before, or at any time afterupon or after the occurrence of, the occurrence of first Event to occur (the “First Event Event”) and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) 2(d), 2(e), and 3(g2(f),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect in accordance with the normal payroll practices of the Company.
(ii) The Company or its successor, upon such termination of employment with the Company or its successor, successor shall make a cash payment to Executive in an amount equal to three two (2) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or cash incentive compensation received by the Executive from the Company for the fiscal year preceding the First Event, or, if Executive has not been employed by the Company for a full fiscal year as of the time of the First Event, Executive’s guaranteed incentive bonus (ii) the Executive's annual bonus as described in the letter agreement between Executive and the Company dated February 13, 2007) at target for the fiscal year prior in which the First Event occurs. Any amount payable under this Section 2(a)(ii) will be paid to Executive in a lump sum on the then-current year, such payment to be made to the Executive by first regular payroll date of the Company or its successor in a lump sum at to occur after the time first day of such termination of employment; andthe seventh month following the Termination Date.
(2iii) shall be entitled for three years For a 24-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability insured group health and group life insurance plan or program (but not a self-insured medical expense reimbursement plan within the meaning of Section 105(h) of the Code) in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three24-year month period; provided provided, however, that if in the event that Executive's ’s participation in any such health, disability health or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with insured benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation. Benefits otherwise receivable by Executive pursuant to this Section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 24-month period, and Executive shall promptly report receipt of any such benefits to the Company.
(iv) Any outstanding and unvested stock options granted to Executive shall be accelerated and become immediately exercisable by Executive (and shall remain exercisable for the applicable post-termination exercise periods specified in the applicable stock option agreements), any unvested restricted stock units granted to Executive shall be accelerated and shares of Company stock shall be issued to Executive or cash shall be paid to Executive, as specified in the applicable restricted stock unit agreement, and any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive reimbursement for all legal fees and expenses incurred by the Executive in his lifetime as a result of such terminationtermination and relating to claims not barred by the applicable statutes of limitations, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. The amount of expenses eligible for reimbursement hereunder during any given calendar year shall not affect the expenses eligible for reimbursement in any other calendar year. Executive shall submit verification of expenses to the Company within 60 days from the date the expense was incurred, and the Company shall reimburse eligible expenses within 30 days thereafter, but in any case no later than the last day of the calendar year following the calendar year in which the expense was incurred. The right to reimbursement of legal fees and expenses hereunder may not be exchanged for cash or any other benefit.
(c) In addition to all other amounts payable to Executive under this Section 2, Executive shall be entitled to receive all benefits payable to Executive under any other plan or agreement relating to retirement benefits, pursuant to the terms and conditions of such plan or agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Executive executes, and there shall be effective following any statutory period for revocation or rescission, a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets, and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated; provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which he is entitled under this Agreement as a result of such Event or Executive’s rights to indemnification under applicable law, the extent such payments would in the opinion charter documents of the Company's independent certified public accountants prevent them from providing , any insurance policy maintained by the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of or any written agreement between the Company under this Section 3 shall survive the termination of this Agreement.and Executive; and
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's ’s employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "“First Event"”), in which case the Executive shall be entitled to no payment or benefits under this Section 32):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e2(d) and 3(g2(e),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive’s full base salary through the Termination Date at the rate then in effect.
(ii) The Company or its successor, upon such termination of employment with within 75 days after the Company or its successorTermination Date, shall make a cash payment to Executive in an amount equal to three one (1) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company or its successor in a lump sum at for the time of such termination of employment; andfiscal year preceding the First Event.
(2iii) shall be entitled for three years For a 12-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three12-year month period; provided provided, however, that if in the event that Executive's ’s participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation. Benefits otherwise receivable by Executive pursuant to this section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 12-month period, and Executive shall promptly report receipt of any such benefits to the Company.
(iv) Any outstanding and unvested stock options granted to Executive shall be accelerated and become immediately exercisable by Executive (and shall remain exercisable for the terms specified in the applicable stock option agreements), any unvested restricted stock units granted to Executive shall be accelerated and shares of Company stock shall be issued to Executive or cash shall be paid to Executive, as specified in the applicable restricted stock unit agreement, and any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(dc) If at any time from the date of the First Event until the end of the Transition Period,
(1) the In addition to all other amounts payable to Executive under this Section 2, Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled to receive all benefits payable to Executive under this Agreement in the absence of this Section 3(e) any other plan or agreement relating to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e)retirement benefits.
(fd) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after terminationthe Termination Date or otherwise, except as specifically provided in this Agreement.
(e) Notwithstanding any other provision of this Agreement, the Company will not pay to Executive, and Executive will not be entitled to receive, any payment pursuant to Section 2(a)(ii) unless and until:
(i) Executive executes, and there shall be effective following any statutory period for revocation or rescission, a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets, and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated; provided, however, that the release shall not adversely affect Executive’s rights to receive benefits to which he is entitled under this Agreement or Executive’s rights to indemnification under applicable law, the charter documents of the Company, any insurance policy maintained by the Company or any written agreement between the Company and Executive; and
(ii) Executive executes an agreement prohibiting Executive for a period of one (1) year following the Termination Date from soliciting, recruiting or inducing, or otherwiseattempting to solicit, recruit or induce, any employee of the Company or of any company acquiring the Company or its assets to terminate the employee’s employment.
(f) Notwithstanding any other provision of this Agreement, any payment under this Agreement that would otherwise be treated as deferred compensation under Section 409A of the Internal Revenue Code of 1986, as amended, shall be delayed until the first day of the seventh month after the date of “separation from service” (as determined under Section 409A).
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 2 shall survive the termination of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company Company, the Bank or its successor either of their successors (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the CompanyCompany or the Bank) a cash payment and other benefits on the following basis (unless the Executive's ’s employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "“First Event"”), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition PeriodPeriod (as defined in Section 4(d)), the employment of the Executive with the Company or the Bank is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company or the Bank for Cause), the Executive (or the Executive's ’s legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1i) shall be entitled to receive from the Company Company, the Bank or its successoreither of their successors, upon such termination of employment with the Company Company, the Bank or its successoreither of their successors, a cash payment in an amount equal to three 2.99 times the sum of (A) the Executive's then-current average annual base salary payable by the Bank and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus included in the year gross income for Federal Income Tax purposes of the Executive during the shorter of the period consisting of the five most recently completed taxable years of the Executive ending before the First Event (other than an Event described in Section 2(a)(v) or 2(a)(vi) unless the Executive is terminated prior to the then-current yearoccurrence of an Event described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv)) or that portion of such period during which the Executive was employed by the Company or the Bank (for which purpose compensation for a partial year shall be annualized, in accordance with temporary or final regulations promulgated under Section 280G(d) of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, before determining average annual compensation for the period, such average annual compensation to be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto and such payment to be made to the Executive by the Company Company, the Bank or its successor either of their successors in a lump sum at the time of such termination of employment; and
(2ii) shall be entitled for three two years after the termination of the Executive's ’s employment with the Company or the Bank to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he were an employee of the Company or the Bank during such threetwo-year periodperiod (except, with respect to health insurance coverage, for those portions remaining during such two-year period that duplicate health insurance coverage that is in place for the Executive under any other policy provided at the expense of another employer); provided however, that if in the event that the Executive's ’s participation in any such health, disability or life insurance plan or program of the Company or the Bank is barred, the CompanyCompany or the Bank, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that which the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company Company, the Bank or one or more of its either of their subsidiaries or its successor successors (including any amounts received before prior to such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the CompanyBank, its subsidiaries or its successor under any other policy or agreement of the Company Bank or its subsidiaries in the event of involuntary termination of Executive's ’s employment.
(c) The Company shall also pay to In the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If event that at any time from the date of the First Event until the end of the Transition Period,
(1i) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's ’s status immediately before prior to the First Event, other than for Cause or on account of Disability;
(2ii) the Executive's ’s annual base salary or bonus formula shall be reduced from the Executive's ’s annual base salary or bonus formula in effect immediately before prior to the First Event;
(3iii) the Company or the Bank shall fail to provide the Executive with benefits under the Company's either of their pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before prior to the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before prior to the First Event;
(4iv) the Company Bank shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5v) the Company or the Bank shall require the Executive to relocate to any place other than a location within 30 thirty-five miles of the location at which the Executive performed his primary duties immediately before prior to the First Event or, if the Executive performed such duties at the Company's ’s principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 thirty-five miles of the location of the principal executive offices immediately before prior to the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Payments and Benefits. If an Event occurs during In connection with your termination and resignation, --------------------- you shall receive the Term following (subject, in each case, to (i) your compliance with the terms of this Termination Agreement, then the Executive shall be entitled to receive from the Company or its successor and (which includes any person acquiring all or substantially all of the assets of the Companyii) a cash payment applicable statutory deductions and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 3withholdings):
(a) If at the time of, or at any time after, the occurrence of the First Event and before the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1) shall be entitled to receive from the Company or its successor, upon such termination of employment with the Company or its successor, a cash payment in an amount equal to three times the sum difference between $2,250,000 and the gross proceeds received by you as a result of your participation in the Company's tender offer (Afor example, if 250,000 of your stock options are retired in accordance with the Company's tender offer and you receive gross proceeds equal to $625,000, the amount due under this provision shall be equal to $1,625,000.) Such amount shall be paid whether or not the ExecutiveCompany's thentender offer is consummated;
(b) continued coverage under the Company's group medical, dental, life insurance, short-term disability and long-term disability plans (the "benefits plans") for a period of one year following the Termination Date or until the date such coverages are obtained by you through another employer; provided, however, that for purposes of determining any period of "COBRA" coverage thereafter, your "qualifying event" shall be deemed to have occurred on the Termination Date, and provided that in the event the Company amends any or all of its benefits plans during the one-year period, that you shall receive coverage that is at least equivalent in scope to your current annual base salary coverage; and
(c) your employee contributions and any vested employer contributions accrued under the Company's 401(k) plan in accordance with the terms thereof. The parties agree that the payment set forth in Section 2(a) is for cancellation of the Employment Agreement and your agreements, releases, and waivers set forth herein, and not remuneration for services rendered, and that therefore the payment shall not be subject to federal employment tax withholding. You agree, however, that you shall reimburse the Company for any amount it may be required to pay in respect of such failure to withhold to the extent such amount represents taxes and interest for which you would otherwise be responsible (Bincluding your share of FICA taxes). The parties further agree that $1,200,00 of the payment set forth in Section 2(a) shall be made no later than April 30, 1999. The remainder of the greater payment set forth in Section 2(a) shall be made on the earlier of (i) six business days following consummation of the Executivecompany's annualized then-current year's bonus or tender offer and (ii) the Executive's annual bonus in the year prior to the then-current yearMay 14, such payment to be made to the Executive by the Company or its successor in a lump sum at the time of such termination of employment; and
(2) shall be entitled for three years after the termination of the Executive's employment with the Company to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before the First Event as if he were an employee of the Company during such three-year period; provided however, that if the Executive's participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the Executive would be entitled to receive under such plan or program as if he were not barred from participation1999.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If at any time from the date of the First Event until the end of the Transition Period,
(1) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company Company, the Bank or its successor either of their successors (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the CompanyCompany or the Bank) a cash payment and other benefits on the following basis (unless the Executive's ’s employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "“First Event"”), in which case the Executive shall be entitled to no payment or benefits under this Section 3):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition PeriodPeriod (as defined in Section 4(d)), the employment of the Executive with the Company or the Bank is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or is on account of the death or Disability of the Executive or is a termination by the Company or the Bank for Cause), the Executive (or the Executive's ’s legal representative, as the case may be), subject to the limitations set forth in Sections 3(e) and 3(g),
(1i) shall be entitled to receive from the Company Company, the Bank or its successoreither of their successors, upon such termination of employment with the Company Company, the Bank or its successoreither of their successors, a cash payment in an amount equal to three 2.0 times the sum of (A) the Executive's then-current average annual base salary payable by the Bank and (B) the greater of (i) the Executive's annualized then-current year's bonus or (ii) the Executive's annual bonus included in the year gross income for Federal Income Tax purposes of the Executive during the shorter of the period consisting of the five most recently completed taxable years of the Executive ending before the First Event (other than an Event described in Section 2(a)(v) or 2(a)(vi) unless the Executive is terminated prior to the then-current yearoccurrence of an Event described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv)) or that portion of such period during which the Executive was employed by the Company or the Bank (for which purpose compensation for a partial year shall be annualized, in accordance with temporary or final regulations promulgated under Section 280G(d) of the Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision thereto, before determining average annual compensation for the period, such average annual compensation to be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto and such payment to be made to the Executive by the Company Company, the Bank or its successor either of their successors in a lump sum at the time of such termination of employment; and
(2ii) shall be entitled for three years one year after the termination of the Executive's ’s employment with the Company or the Bank to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he were an employee of the Company or the Bank during such threeone-year periodperiod (except, with respect to health insurance coverage, for those portions remaining during such one-year period that duplicate health insurance coverage that is in place for the Executive under any other policy provided at the expense of another employer); provided however, that if in the event that the Executive's ’s participation in any such health, disability or life insurance plan or program of the Company or the Bank is barred, the CompanyCompany or the Bank, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that which the Executive would be entitled to receive under such plan or program as if he were not barred from participation.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company Company, the Bank or one or more of its either of their subsidiaries or its successor successors (including any amounts received before prior to such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the CompanyBank, its subsidiaries or its successor under any other policy or agreement of the Company Bank or its subsidiaries in the event of involuntary termination of Executive's ’s employment.
(c) The Company shall also pay to In the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(d) If event that at any time from the date of the First Event until the end of the Transition Period,
(1i) the Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's ’s status immediately before prior to the First Event, other than for Cause or on account of Disability;
(2ii) the Executive's ’s annual base salary or bonus formula shall be reduced from the Executive's ’s annual base salary or bonus formula in effect immediately before prior to the First Event;
(3iii) the Company or the Bank shall fail to provide the Executive with benefits under the Company's either of their pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before prior to the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before prior to the First Event;
(4iv) the Company Bank shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5v) the Company or the Bank shall require the Executive to relocate to any place other than a location within 30 thirty-five miles of the location at which the Executive performed his primary duties immediately before prior to the First Event or, if the Executive performed such duties at the Company's ’s principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 thirty-five miles of the location of the principal executive offices immediately before prior to the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 3(e) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e).
(f) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, or otherwise.
(g) Notwithstanding any other term of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires to cause the Company to effect a transaction that will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to any payments under this Agreement as a result of such Event to the extent such payments would in the opinion of the Company's independent certified public accountants prevent them from providing the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of the Company under this Section 3 shall survive the termination of this Agreement.
Appears in 1 contract
Payments and Benefits. If an any Event occurs shall occur during the Term of this Agreement, then the Executive shall be entitled to receive from the Company or its successor (which includes term as used herein shall include any person acquiring all or substantially all of the assets of the Company) a cash payment and other benefits on the following basis (unless the Executive's employment by the Company is terminated voluntarily or involuntarily before prior to the occurrence of the earliest Event to occur (the "First Event"), in which case the Executive shall be entitled to no payment or benefits under this Section 32):
(a) If at the time of, or at any time after, the occurrence of the First Event and before prior to the end of the Transition Period, the employment of the Executive with the Company is voluntarily or involuntarily terminated for any reason (unless such termination is a voluntary termination by the Executive other than a Constructive Involuntary Termination or for Good Reason, is on account of the death or Disability of the Executive or is a termination by the Company for Cause), the Executive (or the Executive's legal representative, as the case may be), subject to the limitations set forth in Sections 3(e2(d) and 3(g2(e),
(1) , Executive shall be entitled to receive from the following:
(i) The Company shall pay Executive's full base salary at the rate then in effect, benefits, and vacation or other paid time off earned through the Termination Date.
(ii) The Company or its successor, upon such termination of employment with within 90 days after the Company or its successorTermination Date, shall make a cash payment to Executive in an amount equal to three two (2) times the sum of (A) the Executive's then-current annual base salary and of Executive in effect immediately prior to the First Event plus (B) the greater of (i) the Executive's annualized then-current year's cash bonus or (ii) the Executive's annual bonus in the year prior to the then-current year, such payment to be made to cash incentive compensation received by the Executive by from the Company or its successor in a lump sum at for the time of such termination of employment; andlast full fiscal year preceding the First Event.
(2iii) shall be entitled for three years For a 24-month period after the termination of the Executive's employment with Termination Date, the Company shall allow Executive to participate in any health, disability and life insurance plan or program in which the Executive was entitled to participate immediately before prior to the First Event as if he Executive were an employee of the Company during such three24-year month period; provided provided, however, that if in the event that Executive's participation in any such health, disability or life insurance plan or program of the Company is barred, the Company, at its sole cost and expense, shall arrange to provide the Executive with benefits substantially similar to those that the which Executive would be entitled to receive under such plan or program as if he Executive were not barred from participation. Benefits otherwise receivable by Executive pursuant to this section 2(a)(iii) shall be reduced to the extent comparable benefits are received by Executive from another employer or other third party during such 24-month period, and Executive shall promptly report receipt of any such benefits to the Company.
(iv) Any outstanding and unvested stock options granted to Executive shall be accelerated and become immediately exercisable by Executive (and shall remain exercisable for the terms specified in the applicable stock option agreements) and any restricted stock awarded to Executive and subject to forfeiture shall be fully vested and shall no longer be subject to forfeiture.
(b) The payments provided for in this Section 3 shall be in addition to any salary or other remuneration otherwise payable to the Executive on account of employment by the Company or one or more of its subsidiaries or its successor (including any amounts received before such termination of employment for personal services rendered after the occurrence of the First Event) but shall be reduced by any severance pay which the Executive receives from the Company, its subsidiaries or its successor under any other policy or agreement of the Company in the event of involuntary termination of Executive's employment.
(c) The Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such termination, including including, but not limited to, all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(dc) If at any time from the date of the First Event until the end of the Transition Period,
(1) the In addition to all other amounts payable to Executive under this Section 2, Executive shall not be given substantially equivalent or greater title, duties, responsibilities and authority, in each case as compared with the Executive's status immediately before the First Event, other than for Cause or on account of Disability;
(2) the Executive's annual base salary or bonus formula shall be reduced from the Executive's annual base salary or bonus formula in effect immediately before the First Event;
(3) the Company shall fail to provide the Executive with benefits under the Company's pension, profit sharing, retirement, life insurance, medical, health and accident, disability, bonus and incentive plans and other employee benefit plans and arrangements that in the aggregate for all such plans and arrangements are at least as favorable to the Executive as those benefits covering the Executive immediately before the First Event or shall fail to provide the Executive with at least the number of paid vacation days to which the Executive was entitled immediately before the First Event;
(4) the Company shall have failed to obtain assumption of this Agreement by any successor as contemplated by Section 5(b) hereof;
(5) the Company shall require the Executive to relocate to any place other than a location within 30 miles of the location at which the Executive performed his primary duties immediately before the First Event or, if the Executive performed such duties at the Company's principal executive offices, the Company shall relocate its principal executive offices to any location other than a location within 30 miles of the location of the principal executive offices immediately before the First Event; or
(6) the Company shall require that the Executive travel on Company business to a substantially greater extent than required immediately before the First Event; then a termination of employment with the Company by the Executive thereafter shall constitute a "Constructive Involuntary Termination."
(e) Notwithstanding any provision of this Agreement to the contrary, except the last sentence of this Section 3(e), if the lump-sum cash payment due and the other benefits to which the Executive shall become entitled under Section 3(a), either alone or together with other payments in the nature of compensation to the Executive that are contingent on a change in the ownership or effective control of the Company or in the ownership of a substantial portion of the assets of the Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump-sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to the Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 3(e) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 after the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled to receive all benefits payable to Executive under this Agreement in the absence of this Section 3(e) any other plan or agreement relating to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded after the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 3(e)retirement benefits.
(fd) The Executive shall not be required to mitigate the amount of any payment or other benefit provided for in this Section 3 2 by seeking other employment or otherwise, nor (except as specifically provided in Section 3(a)(2) or 3(b)) shall the amount of any payment or other benefit provided for in this Section 3 2 be reduced by any compensation earned by the Executive as the result of employment by another employer after termination, the Termination Date or otherwise, except as specifically provided in this Agreement.
(ge) Notwithstanding any other term provision of this Agreement, if (1) an Event has not yet occurred, (2) the Board of Directors of the Company desires will not pay to cause the Company to effect a transaction that Executive, and Executive will qualify as a pooling-of-interests transaction (a "Pooling Transaction") and (3) the independent certified public accountants for the Company advise the Board of Directors that they will be unable to render an opinion that such transaction will be treated as a Pooling Transaction solely because of the payments provided for in this Agreement (or in similar agreements with other employees of the Company), then the Executive agrees that upon the happening of any Event in connection with such Pooling Transaction he shall not be entitled to receive, any payments payment pursuant to Section 2(a)(ii) unless and until:
(i) Executive executes, and there shall be effective following any statutory period for revocation or rescission, a release that irrevocably and unconditionally releases the Company, any company acquiring the Company or its assets, and their past and current shareholders, directors, officers, employees and agents from and against any and all claims, liabilities, obligations, covenants, rights and damages of any nature whatsoever, whether known or unknown, anticipated or unanticipated; provided, however, that the release shall not adversely affect Executive's rights to receive benefits to which he is entitled under this Agreement as Agreement, any other then-applicable agreement between Executive and the Company, or any employee benefit plans of the Company in which Executive is then a result of such Event participant, or Executive's rights to indemnification under applicable law, the extent such payments would in the opinion charter documents of the Company's independent certified public accountants prevent them from providing , any insurance policy maintained by the Company with a favorable opinion with respect to the treatment of the desired transaction as a Pooling Transaction.
(h) The obligations of or any written agreement between the Company under this Section 3 shall survive the termination of this Agreement.and Executive; and
Appears in 1 contract
