Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to: (a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs; (b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met. (c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met. (d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date. (e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer. (f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy. (g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
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Samples: Severance Agreement (Castle a M & Co), Severance Agreement (Castle a M & Co)
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occursoccurs and had the applicable incentive target(s) for such calendar year been fully met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that if the Executive’s Termination Date occurs after June 30th of the calendar year, the Executive may elect, in a writing filed with the Company during the 7-day period immediately following his Termination Date, to have the amount payable to him under this subparagraph (b) calculated on the basis of the actual (rather than the target) short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of such payment calendar year, which amount shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been metpro-rated as set forth in this subparagraph (b).
(c) with respect to each outstanding any granted but not awarded performance Stock pursuant to the Company’s long term incentive plan, the 2005 to 2007 Restricted, Stock Option and nonvested Equity Plan, initiated on January 1, 2005 and terminating on December 31, 2007, Executive shall receive the entire lump sum of that grant at Termination; provided , however, that if the Executive’s Termination occurs after June 30th of the calendar year, the Executive may elect, in a writing filed with the Company during the 7-day period immediately following his Termination Date, to have the amount payable to him under this subparagraph (c) calculated on the basis of the actual (rather than the target) long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted incentive compensation to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each been entitled had he continued in the employ of the Company through the last day of such award calendar year.
(d) with respect to any granted but not awarded Performance Stock or other long term incentive compensation, a lump sum payment in an amount to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs and had the applicable performance periodincentive target(s) for such calendar year been fully met, pro-rated for the number of days during such performance period the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration Termination Date occurs after June 30th of the threecalendar year, the Executive may elect, in a writing filed with the Company during the 7-month day period immediately following the his Termination Date, to have the amount payable to him under this subparagraph (c) calculated on the basis of the actual (rather than the target) long-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of such calendar year, which amount shall be pro-rated as set forth in this subparagraph (c).
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section section 4980B of the Code (“COBRA”)). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before after a Change in of Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) two times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the his Termination Date occursoccurs and had the applicable incentive target(s) for such calendar year been fully met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and the Executive’s Termination Date occurs after June 30th of the calendar year, the Executive may elect, in a writing filed with the Company during the 7-day period immediately following his Termination Date, to have the extent amount payable to him under this subparagraph (b) calculated on the applicable performance measure(sbasis of the actual (rather than the target) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested longshort-term performance award (including an equity-based or a non-equity-based long-term performance award) granted incentive compensation to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award been entitled had he continued in the employ of the Company through the last day of such calendar year, which amount shall be pro-rated as set forth in this subparagraph (b).
(c) for each performance cycle for which an award to the Executive is outstanding under the Company’s long-term incentive compensation plan and with respect to which the Executive has performed services at his Termination Date for a period greater than 50 percent of the total performance cycle, a lump sum payment in an amount equal to the long-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of such performance cycle and had the applicable incentive targets for such performance periodcycle been fully met, pro-rated for the number of days during such the applicable performance period cycle that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect if the Executive is vested in the Company’s tax-qualified defined benefit plan at the time his employment terminates, he shall be entitled to each then-outstanding and vested stock option granted an amount equal to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier actuarial equivalent of the original expiration date additional amount that Executive would have earned under such plan had he accumulated three(3) additional continuous years of each such option (without regard service for benefit crediting purposes. Such amount shall be paid to any accelerated expiration date otherwise resulting from the Executive in an actuarially equivalent cash lump sum at Executive’s termination of employment) or normal retirement age (as defined in such tax-qualified defined benefit plan), unless the expiration of Executive chooses the three-month period following the Termination Dateoption provided under Code Section 409A as outlined in paragraph 8 herein.
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section section 4980B of the Code (“COBRA”)). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make makes a timely and proper election to be covered under COBRA and make makes timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occursoccurs and had the applicable incentive target(s) for such calendar year been met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date.
(c) [For CFO: for each performance cycle for which an award to the Executive is outstanding under the Company’s long term incentive compensation plan and with respect to which the Executive has performed services to his Termination Date, a lump sum payment in an amount equal to the target number of shares granted to the Executive in the long term incentive plan to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the performance cycle, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date.] [For COO: with respect to any granted but not awarded performance Stock pursuant to the Company’s long term incentive plan, the 2005 to 2007 Restricted, Stock Option and Equity Plan, initiated on January 1, 2005 and terminating on December 31, 2007, Executive shall receive the entire lump sum of that grant at Termination; provided , however, that if the Executive’s Termination occurs after June 30th of the calendar year, the Executive may elect, in a writing filed with the Company during the 7-day period immediately following his Termination Date, to have the amount payable to him under this subparagraph (c) calculated on the basis of the actual (rather than the target) long-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of such calendar year; with respect to any granted but not awarded Performance Stock or other long term incentive compensation, a lump sum payment in an amount to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs and had the applicable incentive target(s) for such calendar year been fully met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and the Executive’s Termination Date occurs after June 30th of the calendar year, the Executive may elect, in a writing filed with the Company during the 7-day period immediately following his Termination Date, to have the extent the applicable performance measure(s) for such calendar year have actually been met.
amount payable to him under this subparagraph (c) with respect to each outstanding and nonvested calculated on the basis of the actual (rather than the target) long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted incentive compensation to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award been entitled had he continued in the employ of the Company through the last day of the applicable performance periodsuch calendar year, which amount shall be pro-rated for the number of days during such performance period that the as set forth in this subparagraph (c).] [For Other Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
Officers: N/A] (d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date.
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(fe) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occursoccurs and had the applicable incentive target(s) for such calendar year been fully met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that if the Executive’s Termination Date occurs after June 30th of the calendar year, the Executive may elect, in a writing filed with the Company during the 7-day period immediately following his Termination Date, to have the amount payable to him under this subparagraph (b) calculated on the basis of the actual (rather than the target) short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of such payment calendar year, which amount shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been metpro-rated as set forth in this subparagraph (b).
(c) with respect to each outstanding any granted but not awarded performance Stock pursuant to the Company’s long term incentive plan, the 2005 to 2007 Restricted, Stock Option and nonvested Equity Plan, initiated on January 1, 2005 and terminating on December 31, 2007, Executive shall receive the entire lump sum of that grant at Termination; provided , however, that if the Executive’s Termination occurs after June 30th of the calendar year, the Executive may elect, in a writing filed with the Company during the 7-day period immediately following his Termination Date, to have the amount payable to him under this subparagraph (c) calculated on the basis of the actual (rather than the target) long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted incentive compensation to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each been entitled had he continued in the employ of the Company through the last day of such award calendar year.
(d) with respect to any granted but not awarded Performance Stock or other long term incentive compensation initiated on a date subsequent to the 2005 to 2007 Restricted Stock Option and Equity Plan inititaion period starting January 1, 2005, a lump sum payment in an amount to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs and had the applicable performance periodincentive target(s) for such calendar year been fully met, pro-rated for the number of days during such performance period the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration Termination Date occurs after June 30th of the threecalendar year, the Executive may elect, in a writing filed with the Company during the 7-month day period immediately following the his Termination Date, to have the amount payable to him under this subparagraph (c) calculated on the basis of the actual (rather than the target) long-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of such calendar year, which amount shall be pro-rated as set forth in this subparagraph (c).
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section section 4980B of the Code (“COBRA”)). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason)) before April 1, 2008, or any voluntary resignation is agreed upon by Executive, the CEO and Board of Directors.
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if (i) the Executive’s employment is terminated during the Term of this Agreement and before after a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, or (ii) to the extent set forth in subparagraph 4(c) and 4(d) below, in the event of a Change in Control, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) two times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) yearCompany, a payment upon a Change in Control equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Datedate of the Change in Control; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been metmet as determined as of the end of the completed calendar month immediately preceding the Change in Control (with any cumulative performance measures prorated on a straight line basis through such date), and payment of any such compensation that is required to be made in shares of the Company’s common stock shall be made in cash, with the fair market value of a share of the Company’s common stock underlying such award determined based on the value per share of the Company’s common stock provided to stockholders of the Company generally in connection with the Change in Control (or, if none, based on the closing market composite price of a share of the Company’s common stock on the date of the Change in Control as reported on the national securities exchange on which the stock is listed or, if not a trading day, on the last trading day preceding the date of the Change in Control).
(d) full and immediate vesting upon the Termination Date of each then-outstanding and nonvested stock option, restricted stock, restricted stock unit, or other equity-based compensation award (other than an equity-based long-term performance award) granted to the Executive by the Company; provided, however, that, upon a Change in Control, if and to the extent such nonvested stock option, restricted stock, restricted stock unit, or other equity-based compensation award is not converted into common stock of the acquirer (on an equivalent value basis) or if such common stock of the acquirer is not listed on a national securities exchange which is regulated under Section 6 of the Securities and Exchange Act of 1934, as amended, then such award shall fully and immediately vest effective as of the Change in Control and payment of any compensation in respect of such award that is required to be made or settled in shares of the Company’s common stock shall be made in cash, with the fair market value of a share of the Company’s common stock underlying such award determined based on the value per share of the Company’s common stock provided to stockholders of the Company generally in connection with the Change in Control (or, if none, based on the closing market composite price of a share of the Company’s common stock on the date of the Change in Control as reported on the national securities exchange on which the stock is listed or, if not a trading day, on the last trading day preceding the date of the Change in Control).
(e) with respect to each then-outstanding and vested stock option granted to the Executive by the CompanyCompany (including any stock option that becomes vested by application of subparagraph 4(d)), exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date.
(ef) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(fg) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason). For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason, if (i) the Executive’s employment is terminated by the Company without Cause prior to a Change in Control (whether or not the Change in Control ever occurs) at the request or direction of a Person who has entered into an agreement with the Company, the consummation of which would constitute a Change in Control, (ii) the Executive terminates his employment for Good Reason prior to a Change in Control (whether or not the Change in Control ever occurs) and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason and such termination or the circumstance or event which constitutes Good Reason is otherwise in connection with or in anticipation of a Change in Control (whether or not the Change in Control ever occurs).
Appears in 1 contract
Payments and Benefits. Subject (a) To the extent not already paid, the Company shall pay or provide to Executive the sum of: (i) the portion of Executive’s annual base salary earned through the Separation Date, (ii) any expenses owed to Executive under the Company’s expense reimbursement policies, and (iii) any vested benefits accrued under any employee benefit plans, programs or arrangements of the Company, which shall be payable in accordance with the terms and conditions of this Agreementsuch employee benefit plans, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause programs or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;arrangements.
(b) Subject to Executive’s continued compliance with the terms of any confidentiality, non-competition, non-solicitation or other similar restrictive covenants with the Company to which Executive is subject:
(i) The Company shall pay to Executive a cash payment equal to the 25% of the annual bonus that would have been earned by Executive for the 2019 calendar year had he remained continuously employed, as determined by the Board based on actual performance, which amount, if any, shall be paid to Executive in a lump sum at the same time in 2020 as annual performance bonuses for 2019 are paid to the Company’s actively employed executive employees; and
(ii) If Executive timely elects to receive continued medical coverage under the Company’s group healthcare plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will pay the COBRA premiums under such plans for Executive and Executive’s dependents who were covered under such plans as of the Separation Date during the period commencing on the Separation Date and ending upon the earliest of (x) December 31, 2019, (y) the date that Executive becomes no longer eligible for COBRA and (z) the date Executive becomes eligible to receive comparable coverage from a subsequent employer (and Executive agrees to promptly notify the Company of such eligibility if the same occurs during the COBRA payment period). Notwithstanding the foregoing, if the Company determines that it cannot provide the foregoing benefit without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act) or incurring an excise tax, the Company shall in lieu thereof provide to Executive a taxable monthly payment in an amount equal to the annual short-term incentive compensation to which the monthly COBRA premium that Executive would have been entitled had he continued be required to pay to continue Executive’s and Executive’s covered dependent’s group health coverage in effect on the Separation Date (which amount shall be based on the premium for the first month of COBRA coverage), which payments shall commence in the employ of month following the Company through the last day of the calendar year month in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that Company makes such payment determination and shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date.
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier earliest of (iA) the first anniversary of the Termination Date or December 31, 2019, (iiB) the date on which the that Executive commences employment with another employer.
(f) becomes no longer eligible for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date COBRA and (iiC) the date on which Executive becomes eligible to receive healthcare coverage from a subsequent employer (and Executive agrees to promptly notify the Executive commences employment with another employerCompany of such eligibility if the same occurs during the COBRA payment period), the Executive shall subject to any delay that may be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary required under Section 409A of the Termination Date and (ii) the date on which the Executive commences employment with another employerInternal Revenue Code of 1986, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason)as amended.
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employmentemployment hereunder shall constitute a resignation other than for Good Reason and, in accordance with Section 2.1(b) or the expiration of the three-month period following the Termination Date.
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiariesPlan, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any Plan Benefits. Executive acknowledges and agrees that, as of the Separation Date, his participation in, and eligibility to receive any Plan Benefits as a Tier II Participant pursuant to the Plan shall terminate. Except as otherwise set forth herein, Executive shall not be eligible to receive any further compensation or benefits other than, in each case, if applicable as of the Separation Date, (i) any base salary earned but unpaid through the Separation Date in accordance with the Company’s general payroll practices, and (ii) any incurred but unreimbursed expenses through the Separation Date in accordance with the Company’s expense reimbursement policy.
(b) Provided that this Agreement becomes effective in accordance with Section 14(b) of this Agreement, Executive complies with Executive’s obligations under this Agreement and the Consulting Period is not terminated by the Company for Cause, the Company agrees to pay Executive $10,000, which amount shall be paid to Executive as soon as reasonably practicable after this Agreement becomes effective in accordance with Section 14(b) and if the time provided therein spans two calendar years, such payment shall be made in the second calendar year.
(c) Provided that this Agreement becomes effective in accordance with Section 14(a) of this Agreement and Executive complies with his termination obligations under this Agreement and subject to the terms and conditions of employment occurs on account the applicable equity incentive plan and corresponding award agreements, any equity awards held by Executive as of his deaththe date hereof shall continue to be eligible to vest during the Consulting Period; provided, disabilitythat, or voluntary resignation (other than in the event that the Consulting Period is terminated by the Company for Good Reason)Cause, any such equity awards shall cease to vest as of the date the Consulting Period is terminated.
Appears in 1 contract
Samples: Separation, Consulting and Release Agreement (2U, Inc.)
Payments and Benefits. Subject to the terms and conditions of this Agreement, if (i) the Executive’s employment is terminated during the Term of this Agreement and before after a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, or (ii) to the extent set forth in subparagraph 4(c) and 4(d) below, in the event of a Change in Control, the Executive shall be entitled to:
(a) a lump sum severance payment equal to [ranging from one and one-half (11/2) times the sum of (i) to two times] the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) yearCompany, a payment upon a Change in Control equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Datedate of the Change in Control; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been metmet as determined as of the end of the completed calendar month immediately preceding the Change in Control (with any cumulative performance measures prorated on a straight line basis through such date), and payment of any such compensation that is required to be made in shares of the Company’s common stock shall be made in cash, with the fair market value of a share of the Company’s common stock underlying such award determined based on the value per share of the Company’s common stock provided to stockholders of the Company generally in connection with the Change in Control (or, if none, based on the closing market composite price of a share of the Company’s common stock on the date of the Change in Control as reported on the national securities exchange on which the stock is listed or, if not a trading day, on the last trading day preceding the date of the Change in Control).
(d) full and immediate vesting upon the Termination Date of each then-outstanding and nonvested stock option, restricted stock, restricted stock unit, or other equity-based compensation award (other than an equity-based long-term performance award) granted to the Executive by the Company; provided, however, that, upon a Change in Control, if and to the extent such nonvested stock option, restricted stock, restricted stock unit, or other equity-based compensation award is not converted into common stock of the acquirer (on an equivalent value basis) or if such common stock of the acquirer is not listed on a national securities exchange which is regulated under Section 6 of the Securities and Exchange Act of 1934, as amended, then such award shall fully and immediately vest effective as of the Change in Control and payment of any compensation in respect of such award that is required to be made or settled in shares of the Company’s common stock shall be made in cash, with the fair market value of a share of the Company’s common stock underlying such award determined based on the value per share of the Company’s common stock provided to stockholders of the Company generally in connection with the Change in Control (or, if none, based on the closing market composite price of a share of the Company’s common stock on the date of the Change in Control as reported on the national securities exchange on which the stock is listed or, if not a trading day, on the last trading day preceding the date of the Change in Control).
(e) with respect to each then-outstanding and vested stock option granted to the Executive by the CompanyCompany (including any stock option that becomes vested by application of subparagraph 4(d)), exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date.
(ef) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(fg) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(gh) for [In certain instances to include the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which following subparagraph:] if the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at is vested in the Company’s costtax-qualified defined benefit plan at the time his employment terminates, he shall be entitled to an amount equal to the actuarial equivalent of the additional amount that the Executive would have earned under such plan had he accumulated three (3) additional continuous years of service for benefit accrual purposes. Such amount shall be paid to the Executive in an actuarially equivalent cash lump sum. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason). For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason, if (i) the Executive’s employment is terminated by the Company without Cause prior to a Change in Control (whether or not the Change in Control ever occurs) at the request or direction of a Person who has entered into an agreement with the Company, the consummation of which would constitute a Change in Control, (ii) the Executive terminates his employment for Good Reason prior to a Change in Control (whether or not the Change in Control ever occurs) and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason and such termination or the circumstance or event which constitutes Good Reason is otherwise in connection with or in anticipation of a Change in Control (whether or not the Change in Control ever occurs).
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before after a Change in of Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a [FOR CFO; COO; VP, HUMAN RESOURCES; AND VP, GENERAL COUNSEL: lump sum severance payment equal to one and one-half (11/2) two times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) Date.] [FOR OTHER EXECUTIVE OFFICERS: lump sum severance payment equal to one times the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year base salary in which effect immediately prior to the Termination Date occurs;Date.]
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the his Termination Date occursoccurs and had the applicable incentive target(s) for such calendar year been met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) for each performance cycle for which an award to the Executive is outstanding under the Company’s long-term incentive compensation plan and with respect to each outstanding and nonvested long-term performance award (including which the Executive has performed services to his Termination Date, a lump sum payment in an equity-based or a non-equity-based long-term performance award) amount equal to the target number of shares granted to the Executive by in the Company for long-term incentive plan to which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award been entitled had he continued in the employ of the Company through the last day of such performance cycle multiplied by the applicable performance periodfair market value of the shares as of the Termination Date, pro-rated for the number of days during such the applicable performance period cycle that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect [FOR CFO; COO; VP, HUMAN RESOURCES; AND VP, GENERAL COUNSEL: if the Executive is vested in the Company’s tax-qualified defined benefit plan at the time his employment terminates, he shall be entitled to each then-outstanding and vested stock option granted an amount equal to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier actuarial equivalent of the original expiration date additional amount that Executive would have earned under such plan had he accumulated three (3) additional continuous years of each such option (without regard service for benefit crediting purposes. Such amount shall be paid to any accelerated expiration date otherwise resulting from the Executive in an actuarially equivalent cash lump sum at Executive’s termination of employment) or normal retirement age (as defined in such tax-qualified defined benefit plan), unless the expiration of Executive chooses the three-month period following the Termination Dateoption provided under Code Section 409A as outlined in paragraph 8 herein.] [FOR OTHER EXECUTIVE OFFICERS: N/A]
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make makes a timely and proper election to be covered under COBRA and make makes timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal During the Transition Period, Executive shall continue to one and one-half (11/2) times receive the sum of (i) the Executive’s annual base salary in effect he received immediately prior to the Termination Effective Date in accordance with the Company's regular salary payment practices and (ii) participate in the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Company's employee benefit and welfare plans.
(b) a lump sum Provided that Executive has not revoked his release of claims arising under the Age Discrimination in Employment Act pursuant to Section 13 and has complied with his obligations under Section 7, as reasonably determined by the Board of Directors of the Company, the Company will pay or provide to Executive (or his estate) the following (collectively, the “Payments”), less applicable withholdings and subject to Section 4 and Section 8(b):
(i) subject to Section 4, payment in of an amount equal to the annual short-term incentive compensation to which the base salary Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed received immediately prior to the Termination Effective Date for a period of 24-months commencing on the Retirement Date, in accordance with the Company’s regular salary payment practices;
(ii) any bonus earned under the Company's Executive Incentive Compensation Plan for the Company's fiscal year ended January 31, 2012;
(iii) continuation of the vesting of any outstanding stock options, restricted stock awards and other equity incentive awards (“Equity-Based Awards”) and continuation of Executive's rights to exercise any outstanding Equity-Based Awards through January 31, 2014; provided, however, that such payment the foregoing shall not be made deemed to extend the original ten year term of any outstanding stock options;
(iv) for any outstanding stock options, restricted stock awards or other equity incentive awards which are exercisable, payable or become vested only if one or more pre-established performance criteria are satisfied (“Performance-Based Equity Awards”), each Performance-Based Equity Award will become exercisable, payable or become vested at the time of and to only if the extent underlying performance criteria are satisfied. In the case of any Performance-Based Equity Award that is a stock option which becomes exercisable after January 31, 2014, such option will remain exercisable until the earlier of the award’s original expiration date or April 30, 2014;
(v) continued coverage for Executive (and, if applicable under the applicable performance measure(swelfare benefit plan(s), his spouse and family) for under employee benefit plans (including medical, dental and life plans but excluding disability and nonqualified deferred compensation plans) that covered him (or them) immediately before the Retirement Date as if he had remained in employment through January 31, 2014 and on the same tax affected basis as if he had remained in employment through January 31, 2014. If Executive's participation in any plan is barred, the Company shall either arrange to provide Executive (his spouse and family, if applicable) substantially similar benefits or pay Executive the equivalent tax affected value of the substantially similar benefits in cash, provided such calendar year have actually been metcash payment(s) are made in the tax years such that the payments are compliant with the payment rules under Code section 409A; and
(vi) payment of COBRA premiums.
(c) with respect to each outstanding Without duplication of any amounts provided for in Sections 3(a) and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by 3(b), the Company for which will pay or provide to Executive (or his estate) the Termination Date precedes following, on or as soon as reasonably practicable following the end of the performance period by Retirement Date, less than one applicable withholdings and subject to Section 4:
(1i) year, a payment equal to the amount the Executive would have received under each such award had he continued in the employ of the Company Executive’s base salary earned through the last day of the applicable performance periodRetirement Date and not previously paid,
(ii) reimbursement for any reasonable, pro-rated for the number of days during such performance period that the unreimbursed and documented business expense Executive was employed has incurred in performing his duties hereunder prior to the Termination Retirement Date;
(iii) payment of any accrued but unpaid benefits up to and including the Retirement Date (including without limitation, any bonus due up to the Retirement Date), and any other rights, as required by the terms of any employee benefit plan or program of the Company; provided, however, that such payment shall be made only if and and
(iv) the right to elect continuation coverage of insurance benefits to the extent the applicable performance measure(s) for such performance period have actually been metrequired by law.
(d) with respect to each then-outstanding Such other compensation, in such amount and vested stock option granted to form, as the Executive by Board of Directors of the Company, exercise such option at any time during in consultation with the period beginning on the Termination Date and ending on the earlier Compensation Committee of the original expiration date Board of each such option (without regard Directors, determines to any accelerated expiration date otherwise resulting from the be appropriate in light of Executive’s termination of employment) or the expiration of the three-month period following the Termination Date's performance under this Agreement.
(e) continued health benefit coverage After the Retirement Date and for the so long as Executive and the Executive’s qualified beneficiaries as provided in Section 4980B remains a director of the Code (“COBRA”). Such COBRA continuation coverage Company, Executive shall be eligible to receive any compensation provided to the Executive and non-employee members of the Executive’s qualified beneficiaries only if and Board pursuant to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense generally applicable non-employee director compensation arrangements, and nothing in this Agreement shall limit Executive's rights to receive additional compensation for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary his services as a member of the Termination Date or (ii) Board following the date on which the Executive commences employment with another employerRetirement Date.
(f) The Company's obligations to make the payments provided for in Section 3(b) shall not be affected if Executive becomes disabled after the period beginning on Retirement Date. In the Termination Date and ending on event of Executive's death after the earlier of Retirement Date, (i) Executive's estate shall have the first anniversary of right to continue to receive the Termination Date payments and benefits provided for in Sections 3(b)(i), (ii), (iii) and (iv) and (ii) Executive's spouse and family members shall have the date on which right to continue to receive the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth benefits provided for in the Company’s Automobile Policy.
(gSections 3(b)(v) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reasonvi).
Appears in 1 contract
Payments and Benefits. Subject to the terms (a) Employee acknowledges and conditions of agrees that, except as expressly provided in this Agreement, if the Executive’s employment Employee is terminated during the Term of this Agreement and before a Change in Control (A) by not entitled to any payments or benefits from the Company for a reason or its Affiliates, whether or not arising from the Employment Agreement or any other than for Cause agreement, written or (B) by oral, between Employee and the Executive for Good ReasonCompany or its Affiliates or under any other policy, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensationplan, based on target bonus opportunity for the calendar year in which the Termination Date occurs;program or arrangement.
(b) a lump sum payment Provided that Employee executes and delivers this Agreement and the seven-day rescission period referenced in Section 9(n)(ii) has expired without Employee having rescinded this Agreement, and Employee performs the consulting services contemplated in Section 1(b), Employee shall receive payments for the remainder of 2009 just as if he were still an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ employee of the Company through and for the last day remainder of the calendar year term of this Agreement in which the Termination Date occurs, pro-rated for amounts and on or about the number of days during dates specified on Schedule 2(b) in accordance with the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been metCompany’s normal payroll practices.
(c) with respect Provided that Employee executes and delivers this Agreement and the seven-day rescission period referenced in Section 9(n)(ii) has expired without Employee having rescinded this Agreement, and Employee performs the consulting services contemplated in Section 1(b), if and when performance bonuses for 2009 are paid to Company’s executive officers under the Company’s 2009 Performance Bonus Plan (the “2009 Plan”), Employee shall be entitled to receive the Performance Bonus, the Stretch Bonus and the 2009 Raise Deferral Bonus (in each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance awardcase, as defined in the 2009 Plan) granted payments that he would have been entitled to the Executive if Employee had continued to be employed by the Company for which on the Termination Date precedes date in 2010 that such bonus payments, if any, are made in accordance with the end terms of the performance period by less than one (1) year2009 Plan. Except as provided in this Section 2(c), a payment equal Employee shall not be entitled to the amount the Executive would have received under each such award had he continued participate in the employ any employee incentive or bonus program, or any commission or other program or plan of the Company through the last day of the applicable performance periodcompensation, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Date; providedand Employee shall not receive any incentive or bonus, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been metincluding any discretionary incentive or bonus.
(d) with respect Provided that Employee executes and delivers this Agreement and the seven-day rescission period referenced in Section 9(n)(ii) has expired without Employee having rescinded this Agreement, and Employee performs the consulting services contemplated in Section 1(b), Employee shall vest in such portion of the unvested portion of his outstanding Stock Options and shares of Restricted Stock as set forth on the attached Exhibit A on each scheduled vesting date, subject to each then-outstanding and vested stock option granted (i) Employee’s continuous Service, including Employee’s Service as a consultant to the Executive by the Company, exercise such option and (ii) achievement of the specified cumulative “Free Cash Flow” targets, if applicable. Employee’s outstanding Stock Options shall expire at the close of business at Company headquarters on the 90th day after Employee’s Services terminate, including Service as a consultant to the Company. Notwithstanding the foregoing, at any time during after June 30, 2010, the period beginning Compensation Committee of the Company, in its sole discretion, may determine that the services provided by the Employee pursuant to this Agreement shall no longer constitute “Service” for purposes of vesting of the Stock Options and Restricted Stock and any unvested portions of the Employee’s outstanding Stock Options and shares of Restricted Stock shall terminate as of the date the Compensation Committee makes such determination and Employee’s outstanding Stock Options shall expire at the close of business at Company headquarters on the Termination Date and ending on 90th day after the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from determination by the Executive’s termination of employment) or the expiration of the three-month period following the Termination DateCompensation Committee.
(e) continued health benefit coverage Employee is not entitled to, and shall not, receive any pay for the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (accrued but unused sick leave, personal days or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employervacation days.
(f) for Provided that Employee executes and delivers this Agreement and the seven-day rescission period beginning on the Termination Date referenced in Section 9(n)(ii) has expired without Employee having rescinded this Agreement, unless prohibited by law, any relevant plan documents or agreements or as otherwise specified in this Agreement, Employee and ending on the earlier of (i) the first anniversary his eligible covered dependents, if applicable, may continue coverage through June 30, 2011 in all Company health benefit plans in which he/they are currently enrolled and remain eligible. As of the Termination Date and (ii) end of the date on which Consulting Period, or earlier if Employee is not eligible to continue coverage under the Executive commences employment with another employerCompany health benefit plans, the Executive Employee shall be permitted offered COBRA continuation coverage by the use of a Company-owned or leased automobile on the terms . Any and conditions set forth in all rights to future benefits under the Company’s Automobile Policyretirement and other benefit plans will be governed by applicable law and the appropriate plan documents.
(g) for To the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firmextent required by applicable law, or comparable firm selected by Executive, at the Company’s costelection, as permitted by law, the Company shall withhold the appropriate federal, state and local income and employment taxes, as reasonably determined by the Company, from any amounts or benefits paid under this Agreement. With respect to any other amounts or benefits paid under this Agreement, Employee acknowledges and agrees that such amounts and benefits shall be subject to Internal Revenue Service reporting through a Form 1099, if applicable, issued to Employee and Employee may be required to make quarterly estimated tax payments to satisfy his tax obligations. Payment of such amounts shall be made by Employee without any withholdings or deductions by the Company. Employee agrees that he will be exclusively liable for the payment of any taxes which may be assessed against such amounts or benefits (including compensation realized pursuant to equity awards), as well as any additional payments of interest, penalties, or assessment of attorneys’ fees required by a governmental authority, taxing authority, or court in connection with the payment of such amounts. Employee further agrees to indemnify and hold harmless the Company from any liability (including attorneys’ fees), penalties or interest that may be assessed by any taxing authority or governmental authority with respect to the payment of such amounts. Employee further acknowledges that the Company makes no representations or warranties with respect to the tax treatment by any local, state or federal taxing authority of any payments made under this Agreement.
(h) During the Consulting Period, given Employee’s status as a independent contractor during that period, Employee may not satisfy his tax obligations relating to any shares of Restricted Stock that vest during the Consulting Period by having the Company withhold shares. This includes the Restricted Stock that is scheduled to vest on January 1, 2010. Employee must consult with his own tax advisor to determine how to satisfy his own tax obligations which may include making quarterly estimated tax payments. For purposes of this Agreement, each payment, installment payment, or bi—weekly payment shall be considered a separate payment for purposes of Section 409A.
(i) The Company and Employee intend that compensation provided to Employee pursuant to this Agreement will not be subject to taxation under Section 409A of the avoidance of doubtInternal Revenue Code (“Section 409A”). To the maximum extent permitted, the Executive provisions of this Agreement shall be interpreted and construed in favor of satisfying any applicable requirements or applicable exceptions under Section 409A of the Code. However, the Company does not guarantee any particular tax effect for compensation and benefits provided to Employee pursuant to this Agreement. In any event, except for the Company’s responsibility to withhold applicable income and employment taxes from compensation paid or provided to Employee, the Company shall not be entitled responsible for the payment of any applicable taxes or interest incurred by Employee on compensation or benefits paid or provided to any Employee pursuant to this Agreement. Employee acknowledges that he has relied on his own personal tax advisors, not the Company or its Affiliates, legal counsel or advisors, regarding the tax treatment related to payments and benefits provided under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason)Agreement.
Appears in 1 contract
Samples: Separation Agreement and Release (National CineMedia, Inc.)
Payments and Benefits. Subject to the terms and conditions of this Agreement, if (i) the Executive’s employment is terminated during the Term of this Agreement and before after a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, or (ii) to the extent set forth in subparagraph 4(c) and 4(d) below, in the event of a Change in Control, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) two times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and Date, plus (ii) the Executive’s annual short-term incentive compensation, based on compensation at target bonus opportunity for the calendar year in which the Termination Date occurs;.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) yearCompany, a payment upon a Change in Control equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Datedate of the Change in Control; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been metmet as determined as of the end of the completed calendar month immediately preceding the Change in Control (with any cumulative performance measures prorated on a straight line basis through such date), and payment of any such compensation that is required to be made in shares of the Company’s common stock shall be made in cash, with the fair market value of a share of the Company’s common stock underlying such award determined based on the value per share of the Company’s common stock provided to stockholders of the Company generally in connection with the Change in Control (or, if none, based on the closing market composite price of a share of the Company’s common stock on the date of the Change in Control as reported on the national securities exchange on which the stock is listed or, if not a trading day, on the last trading day preceding the date of the Change in Control).
(d) full and immediate vesting upon the Termination Date of each then-outstanding and nonvested stock option, restricted stock, restricted stock unit, or other equity-based compensation award (other than an equity-based long-term performance award) granted to the Executive by the Company; provided, however, that, upon a Change in Control, if and to the extent such nonvested stock option, restricted stock, restricted stock unit, or other equity-based compensation award is not converted into common stock of the acquirer (on an equivalent value basis) or if such common stock of the acquirer is not listed on a national securities exchange which is regulated under Section 6 of the Securities and Exchange Act of 1934, as amended, then such award shall fully and immediately vest effective as of the Change in Control and payment of any compensation in respect of such award that is required to be made or settled in shares of the Company’s common stock shall be made in cash, with the fair market value of a share of the Company’s common stock underlying such award determined based on the value per share of the Company’s common stock provided to stockholders of the Company generally in connection with the Change in Control (or, if none, based on the closing market composite price of a share of the Company’s common stock on the date of the Change in Control as reported on the national securities exchange on which the stock is listed or, if not a trading day, on the last trading day preceding the date of the Change in Control).
(e) with respect to each then-outstanding and vested stock option granted to the Executive by the CompanyCompany (including any stock option that becomes vested by application of subparagraph 4(d)), exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date.
(ef) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B of the Code (“COBRA”). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(fg) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(gh) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason). For purposes of this Agreement, the Executive’s employment shall be deemed to have been terminated following a Change in Control by the Company without Cause or by the Executive with Good Reason, if (i) the Executive’s employment is terminated by the Company without Cause prior to a Change in Control (whether or not the Change in Control ever occurs) at the request or direction of a Person who has entered into an agreement with the Company, the consummation of which would constitute a Change in Control, (ii) the Executive terminates his employment for Good Reason prior to a Change in Control (whether or not the Change in Control ever occurs) and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person, or (iii) the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason and such termination or the circumstance or event which constitutes Good Reason is otherwise in connection with or in anticipation of a Change in Control (whether or not the Change in Control ever occurs).
Appears in 1 contract
Payments and Benefits. Subject Provided that you sign this Agreement, do not revoke it, and comply with its terms, the Company will provide you with the following payments and benefits:
a. The Company shall make monthly severance payments equal to one-twelfth of your base salary for a period equal to twelve (12) months (the terms “Severance Period”), which shall be less applicable taxes and conditions withholdings, and paid in accordance with the Company’s normal payroll practices, commencing on the first payroll following the Effective Date (defined below) of this Agreement, if provided that the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance initial payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive will include any payments that would have otherwise been entitled had he continued in paid since the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Separation Date.
b. If you validly elect to receive continuation coverage under the Company’s group health plan (eif any) continued health benefit coverage for pursuant to the Executive and the Executive’s qualified beneficiaries as provided in Section 4980B Consolidated Omnibus Budget Reconciliation Act of the Code 1985 (“COBRA”). Such , the Company shall reimburse you the applicable premium otherwise payable for COBRA continuation coverage shall be provided to for yourself and your eligible dependents for the Executive and the Executive’s qualified beneficiaries only if and Severance Period, to the extent that such premium exceeds the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election monthly amount charged to be covered under COBRA and make timely payments active similarly-situated employees of the Company for the cost same coverage.
c. You were previously granted 526,838 shares of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for Common Stock, of which 80,100 shares are unvested as of the Separation Date (the “Unvested Common Stock”). The 80,100 shares of Unvested Common Stock currently held by you shall become fully vested as of the end of the Advisory Period (defined below).
d. Notwithstanding anything to the contrary in the Equity Documents, subject to Board approval, the Company will extend the period beginning on of time in which you may exercise any vested Options to purchase shares of the day after the Termination Date and ending on Company’s common stock until the earlier of (i) the first third year anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date Separation Date; and (ii) the original expiration date on which for the Executive commences employment with another employerapplicable Options, subject to any earlier termination as may be required pursuant to the Executive shall Equity Documents. You acknowledge that such extension of the post-termination exercise period for the vested Options described herein will cause the Options, if they were intended to qualify as incentive stock options within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended, to be permitted taxable as a nonqualified stock options under U.S. Federal tax laws.
e. You hereby agree to provide advisory services to the use of a Company-owned or leased automobile on Company as reasonably requested by the terms and conditions set forth Company for six (6) months following the Separation Date (the “Advisory Period”). To the extent you provide such advisory services, then notwithstanding anything to the contrary in the Company’s Automobile Policy.
(g) Equity Documents, your unvested Equity Awards will continue to vest for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment so long as you remain in a continuing service relationship with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal Whether or not this Agreement becomes effective pursuant to one its terms, the Company will pay you the Accrued Benefits set forth on Appendix A hereto, less all applicable withholdings and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;deductions.
(b) a lump sum payment Provided that this Agreement becomes effective on the Release Effective Date (as defined in Section 5(c) below) and you remain in compliance with this Agreement (other than the requirement that you remain employed through the date on which your successor as Chief Executive Officer of the Company is appointed by the Board) at all times, the Company will pay you the severance payments and benefits set forth on Appendix A items 2(a) through 2(e), in each case less all applicable withholdings and deductions, at the time and in the form set forth on Appendix A.
(c) Provided that you do not resign your employment without Good Reason (and not due to Disability) prior to the date on which your successor as Chief Executive Officer of the Company is appointed by the Board, this Agreement becomes effective on the Second Release Effective Date (as defined in Section 5(d) below) and you remain in compliance with this Agreement at all times, the Company will pay you an amount equal to $100,000 (the annual short“Second Release Consideration”), less all applicable withholdings and deductions, paid in equal installments over the twenty-term incentive compensation to which four month period following the Executive Second Release Effective Date in accordance with the Company’s regular payroll practices, with any payments that would have otherwise been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occurs, pro-rated for the number of days made during the calendar year that period between the Executive was employed prior Separation Date and the Second Release Effective Date to be paid to you in a cash lump sum payment with the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) with respect to each outstanding and nonvested long-term performance award (including an equity-based or a non-equity-based long-term performance award) granted to the Executive by the Company for which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award had he continued in the employ of the Company through the last day of the applicable performance period, pro-rated for the number of days during such performance period that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been metfirst installment.
(d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning Provided that this Agreement becomes effective on the Termination Release Effective Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date.
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided defined in Section 4980B of the Code (“COBRA”5(c) below). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted Company will reimburse you for your documented attorney’s fees incurred in connection with the use completion of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason)in an amount not to exceed $5,000.
Appears in 1 contract
Samples: Separation Agreement (Rite Aid Corp)
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before a Change in Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the Termination Date occursoccurs and had the applicable incentive target(s) for such calendar year been met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) for each performance cycle for which an award to the Executive is outstanding under the Company’s long term incentive compensation plan and with respect to each outstanding and nonvested long-term performance award (including which the Executive has performed services to his Termination Date, a lump sum payment in an equity-based or a non-equity-based long-term performance award) amount equal to the target number of shares granted to the Executive by in the Company for long term incentive plan to which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award been entitled had he continued in the employ of the Company through the last day of the applicable performance periodcycle, pro-rated for the number of days during such performance period the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect to each then-outstanding and vested stock option granted to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier of the original expiration date of each such option (without regard to any accelerated expiration date otherwise resulting from the Executive’s termination of employment) or the expiration of the three-month period following the Termination Date.
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section section 4980B of the Code (“COBRA”)). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make a timely and proper election to be covered under COBRA and make timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(fe) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
Appears in 1 contract
Payments and Benefits. Subject to the terms and conditions of this Agreement, if the Executive’s employment is terminated during the Term of this Agreement and before after a Change in of Control (A) by the Company for a reason other than for Cause or (B) by the Executive for Good Reason, the Executive shall be entitled to:
(a) a lump sum severance payment equal to one and one-half (11/2) two times the sum of (i) the Executive’s annual base salary in effect immediately prior to the Termination Date and (ii) the Executive’s annual short-term incentive compensation, based on target bonus opportunity for the calendar year in which the Termination Date occurs;Date.
(b) a lump sum payment in an amount equal to the annual short-term incentive compensation to which the Executive would have been entitled had he continued in the employ of the Company through the last day of the calendar year in which the his Termination Date occursoccurs and had the applicable incentive target(s) for such calendar year been met, pro-rated for the number of days during the calendar year that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such calendar year have actually been met.
(c) for each performance cycle for which an award to the Executive is outstanding under the Company’s long-term incentive compensation plan and with respect to each outstanding and nonvested long-term performance award (including which the Executive has performed services to his Termination Date, a lump sum payment in an equity-based or a non-equity-based long-term performance award) amount equal to the target number of shares granted to the Executive by in the Company for long-term incentive compensation plan to which the Termination Date precedes the end of the performance period by less than one (1) year, a payment equal to the amount the Executive would have received under each such award been entitled had he continued in the employ of the Company through the last day of such performance cycle multiplied by the applicable performance periodfair market value of the shares on the Termination Date, pro-rated for the number of days during such the applicable performance period cycle that the Executive was employed prior to the Termination Date; provided, however, that such payment shall be made only if and to the extent the applicable performance measure(s) for such performance period have actually been met.
(d) with respect if the Executive is vested in the Company’s tax-qualified defined benefit plan at the time his employment terminates, he shall be entitled to each then-outstanding and vested stock option granted an amount equal to the Executive by the Company, exercise such option at any time during the period beginning on the Termination Date and ending on the earlier actuarial equivalent of the original expiration date additional amount that Executive would have earned under such plan had he accumulated three(3) additional continuous years of each such option (without regard service for benefit crediting purposes. Such amount shall be paid to any accelerated expiration date otherwise resulting from the Executive in an actuarially equivalent cash lump sum at Executive’s termination of employment) or normal retirement age (as defined in such tax-qualified defined benefit plan), unless the expiration of Executive chooses the three-month period following the Termination Dateoption provided under Code Section 409A as outlined in paragraph 8 herein.
(e) continued health benefit coverage for the Executive and the Executive’s qualified beneficiaries as provided in Section section 4980B of the Code (“COBRA”)). Such COBRA continuation coverage shall be provided to the Executive and the Executive’s qualified beneficiaries only if and to the extent that the Executive (or his qualified beneficiaries, as applicable) make makes a timely and proper election to be covered under COBRA and make makes timely payments for the cost of such coverage; provided, however, that such COBRA coverage shall be at the Company’s expense for the period beginning on the day after the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date or (ii) the date on which the Executive commences employment with another employer.
(f) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted the use of a Company-owned or leased automobile on the terms and conditions set forth in the Company’s Automobile Policy.
(g) for the period beginning on the Termination Date and ending on the earlier of (i) the first anniversary of the Termination Date and (ii) the date on which the Executive commences employment with another employer, the Executive shall be permitted to use a Company-provided executive outplacement services firm, or comparable firm selected by Executive, at the Company’s cost. For the avoidance of doubt, the Executive shall not be entitled to any benefits under this Agreement if his termination of employment occurs on account of his death, disability, or voluntary resignation (other than for Good Reason).
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