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Common use of Payments Upon Termination of Employment Clause in Contracts

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurs. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.

Appears in 6 contracts

Samples: Employment Agreement (Papa Johns International Inc), Employment Agreement (Papa Johns International Inc), Employment Agreement (Papa Johns International Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) the Executive’s then-current 's full annual base salary from the Company through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions the Executive's annual bonus in an amount at least equal to the highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which the Executive has been employed by the Company for less than 12 full months) bonus paid or payable, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) deferral, to the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in respect of the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date three fiscal years of the Company following (or such portion thereof during which the expiration Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three fiscal year period) immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of all which is the number of days in the fiscal year in which the Change in Control occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable rescission periods provided by law. Any amount payable payroll or other taxes required to Executive be withheld pursuant to Section 10(b)(ii5) shall be subject in an amount equal to deductions and withholdings and shall be (i) the Executive's highest annual base salary from the Company in effect during the 12-month period prior to the Date of Termination, plus (ii) the Executive's highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which the Executive has been employed by the Company for less than 12 full months) bonus, paid or payable, including by reason of any deferral, to the Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees respect of the Company, but no earlier than the first normal payroll date five fiscal years of the Company following (or such portion thereof during which the expiration of all applicable rescission periods provided Executive performed services for the Company if the Executive shall have been employed by law and no later the Company for less than March 15th of such five fiscal year period) immediately preceding the year following the fiscal year in which the Change in Control occurs, provided, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance agreement, plan, policy or arrangement of the Company. (b) For a period of eighteen months commencing on the Date of Termination, the Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination Date occursand the Company shall pay all costs of the continuation of such insurance coverage. (c) If Executive's employment is terminated by For a period of twelve months commencing on the Company without Cause following a Change in Control as defined in this Agreement and before Date of Termination, the end of the Term, or if the Executive's employment is terminated Executive shall receive outplacement assistance services from an outplacement agency selected by the Executive for Good Reason following a Change and the Company shall pay all costs of such services; provided that such costs shall not exceed $15,000 in Control and before the end aggregate. (d) If during the Termination Period the employment of the TermExecutive shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to the sum of: (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 6 contracts

Samples: Severance Agreement (Bone Care International Inc), Severance Agreement (Bone Care International Inc), Severance Agreement (Bone Care International Inc)

Payments Upon Termination of Employment. (a) If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's ’s abandonment of Executive’s employment or Executive's ’s resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's ’s employment by the Company for Cause (as defined below); or (iii) termination of Executive's ’s employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's ’s employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's ’s regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurs. (c) If Executive's ’s employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's ’s employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's ’s compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.

Appears in 5 contracts

Samples: Employment Agreement (Papa Johns International Inc), Employment Agreement (Papa Johns International Inc), Employment Agreement (Papa Johns International Inc)

Payments Upon Termination of Employment. (a) If If, during the Termination Period, the employment of the Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Executive shall be entitled to the following payments and benefits: (1) The Company shall pay to the Executive (or the Executive's employment with ’s beneficiary or estate) within 30 days after the Date of Termination (except as otherwise provided for in Section 14), as compensation for services rendered to the Company is terminated by reason ofand its Affiliates: (i) Executive's abandonment a lump sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 4) equal to the sum of (x) the Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated base salary from the Company and its Affiliates through the Date of Termination, to the extent not theretofore paid, (y) the Executive’s annual bonus under the Company’s or its Affiliates’ annual bonus plan earned with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, to the extent not theretofore paid and (z) an amount equal to the Executive’s target annual bonus (without regard to any amounts that would otherwise be deferred) immediately prior to the Change in Control (or if higher, the Executive’s target annual bonus in respect of the fiscal year in which the Date of Termination occurs);, multiplied (in the case of clause (z) only) by a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable; plus (ii) termination a lump sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 4) equal to the sum of [one (1)] [two (2)] [three (3)] times the Executive's employment ’s highest annual base salary from the Company and its Affiliates (without regard to any amounts that would otherwise be deferred) in effect during the 12-month period prior to the Date of Termination and [one (1)] [two (2)] [three (3)] times the Executive’s target annual bonus (without regard to any amounts that would otherwise be deferred) immediately prior to the Date of Termination (or, if higher, the average of the annual bonuses earned by the Executive in respect of the three fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for Cause (as defined belowless than such three fiscal year period) immediately preceding the fiscal year in which the Change in Control occurs); or. (iii) termination In the event that the aggregate cash severance and consulting compensation payable under the Employment Agreement would exceed the amounts payable to the Executive pursuant to this Section 3(a)(1), then the Executive shall be entitled to the cash severance and consulting compensation payable under the Employment Agreement in lieu of Executive's employment the amounts payable pursuant to this Section 3(a)(1). Subject to Sections 3(d) and 14 of this Agreement, such amounts shall be paid by the Company without Cause to the Executive within 30 days after the Date of Termination. (2) For a period of [one] [two] [three] years commencing on the Date of Termination, the Company and its Affiliates shall, to the extent permitted under the applicable plans, continue to keep in full force and effect all medical, accident, disability and life insurance benefits with respect to the Executive and the Executive’s dependents with substantially the same level of coverage, upon substantially the same terms and otherwise to the same extent as such benefits shall have been in effect immediately prior to the Change in Control or, if more favorable to the Executive, as provided generally with respect to other peer employees of the Company and its Affiliates, and the Company and the Executive shall share the costs of the continuation of such benefit coverage in the same proportion as such costs were shared immediately prior to the Change in Control. To the extent the Company is unable to provide such benefit coverage for reasons other than cost, the Company shall reimburse the Executive for the amount necessary for the Executive to acquire comparable benefit coverage, reduced by the portion of the applicable premiums otherwise payable by the Executive, with such reimbursement to be made not later than 90 days after the date on which the Executive submits to the Company all required documentation evidencing the reimbursable expense, but in no event later than the end of the calendar year following the calendar year in which the expense was incurred. After the expiration of such [one] [two] [three]-year period, the Term; Executive shall be entitled to continue the Executive’s medical coverage under applicable law (COBRA), at Executive’s expense. (3) Each long-term incentive award granted to the Executive, including without limitation each option, restricted stock, restricted stock unit and other equity-based award, shall become fully vested, and to the extent any such award is subject to the attainment of specified performance measures, such performance measures shall be deemed satisfied at the target level. (4) For a period of [twelve] [six] months commencing on the Date of Termination, the Executive shall receive outplacement assistance services from an outplacement agency selected by the Executive and the Company shall pay all costs of such services; provided that such costs shall not exceed $15,000 in the aggregate. (5) Except as otherwise provided for in Section 3(a)(1), any amounts paid or benefits provided pursuant to this Section 3(a) shall be paid in lieu of any other amount of severance or consulting compensation that would otherwise be received by the Executive his or her then-current base salary through upon termination of employment of the Termination Date and any and all other benefits to which Executive may be entitled under any applicable severance plan, policy or arrangement of the Company policyor its Affiliates, plan including any severance or procedure consulting compensation payable under the Employment Agreement. To be eligible for any payments under this Section 3(a), the Executive must execute and deliver to the Company, within 21 days after the Executive’s Date of Termination, a final and complete release in a form that is reasonably acceptable to and approved by the Company (without duplication of benefitsand not revoke such release). (b) Except in If, during the case Termination Period, the employment of the Executive shall terminate by reason of a Change in ControlNonqualifying Termination, which or if for any other reason the Executive is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior not entitled to the expiration of the Term for any reason other than for Cause (as defined belowpayments and benefits set forth in Section 3(a), then the Company rights of the Executive to severance or consulting compensation shall pay to Executive, subject to Section 10(g) of this Agreement and in addition be determined pursuant to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date terms of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursEmployment Agreement. (c) If the Executive's ’s employment is terminated by the Company without Cause following prior to a Change in Control as defined at the direction or request of any person or group contemplating a Change in this Agreement Control, and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before involving such person or group is thereafter consummated within 12 months following such direction or request, then for purposes of this Agreement the end employment of the TermExecutive shall be deemed to have been terminated as of the first day of the Termination Period and the Executive shall be entitled to the benefits set forth in Section 3(a); provided that such benefits shall be reduced and offset by any severance or consulting benefits received by the Executive prior to the consummation of such Change in Control pursuant to the Employment Agreement or otherwise; and provided further that the Executive executes a release as contemplated by Section 3(a). Any amounts payable pursuant to this Section 3(c) shall be paid within 30 days following the Change in Control, except as otherwise provided for in Section 14. (d) Notwithstanding any other provision in this Agreement, if the Executive shall be entitled to any amounts payable pursuant to Section 3(a) or Section 3(c) in respect of a Change in Control which does not constitute a “change in control event” within the meaning of Treasury Regulation §1.409A-3(i)(5), and such Executive is a party to an Employment Agreement that, but for this Agreement, would provide for the payment of severance benefits at a time or in a form that is different than the time and form of payment under this Agreement, then to the Company shall pay extent necessary to Executive, comply with Section 409A of the Code and subject to Executive's compliance with Section 10(g) 14 of this Agreement, the lesser amounts payable pursuant to Section 3(a) or Section 3(c) shall be payable at the same time and in the same form as provided under such Employment Agreement. For the avoidance of doubt, nothing in this Section 3(d) is intended to reduce the total aggregate amount payable to the Executive pursuant to Section 3(a) or 3(c) of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the this Agreement, or nine months of Executive’s current base salary.

Appears in 4 contracts

Samples: Change in Control Severance Agreement (West Corp), Change in Control Severance Agreement (West Corp), Change in Control Severance Agreement (West Corp)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(h) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurs. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g10(h) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.

Appears in 4 contracts

Samples: Employment Agreement (Papa Johns International Inc), Employment Agreement (Papa Johns International Inc), Employment Agreement (Papa Johns International Inc)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason ofterminated: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iiiA) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then or (B) by the delivery of a written notice to Executive that the Company shall pay elects not to Executive, subject to Section 10(g) extend the term of this Agreement and in addition to the consideration described in Section 4(b) aboveAgreement, the following amounts: (i) Executive’s then-current base salary through the Termination Date;or (ii) pro rata portions by Executive as a result of any quarterly his resignation for Good Reason (as defined below), or (iii) by reason of Executive's Disability (as defined below), the Company shall: (x) pay to Executive as severance pay an amount equal to his current base salary for the greater of (A) 6 months from the Termination Date and annual non-equity bonus payouts under any non-equity incentive-based compensation plans (B) the remaining term of the then current term of this Agreement (the "Severance Period"); (y) if Executive elects to continue his group health insurance coverage with the Company following the termination of his employment with the Company, reimburse him for the full cost of the premiums that he is required to pay to maintain during the Severance Period such coverage at the same level of coverage that was in effect (provided that any applicable performance measures are achieved)as of the Termination Date; and (iiiz) if Executive was employed by the amount Company hereunder for six months or more of Executive’s then current base salary any fiscal year as of the Termination Date, pay to Executive a pro rata portion (based on the number of calendar days of employment during that Executive fiscal year) of any incentive compensation that would have received from been payable to him for such fiscal year pursuant to Section 4(b) hereof as if Executive had been in the Termination Date through employ of the date that is nine months following such Termination DateCompany for the full fiscal year. No incentive compensation shall be payable to Executive with respect to any fiscal year in which Executive was employed by the Company hereunder for less than six months. Any amount payable to Executive pursuant to Section 10(b)(iii) as severance pay or reimbursement for the cost of the continuation of his group health insurance coverage hereunder shall be subject to deductions and withholdings and shall be paid to Executive by the Company in 6 (or such greater number of months as were remaining in the same periodic then current term of this Agreement, as applicable) approximately equal monthly installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawlaw and continuing monthly thereafter. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and as incentive compensation hereunder shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus compensation payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th law. The Company shall be entitled to cease making reimbursement payments to Executive for the cost of the year following continuation of his group health insurance coverage with the year in which Company after the Termination Date occursif Executive becomes eligible for comparable group health insurance coverage from any other employer. For purposes of reduction of the Company's financial obligations to Executive under this Section 10(a), Executive shall promptly and fully disclose to the Company in writing the fact that he has become eligible for comparable group health insurance coverage from any other employer, and Executive shall be liable to repay any amounts to the Company that should have been so reduced but for Executive's failure or unwillingness to make such disclosure. (cb) If Executive's employment with the Company is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end reason of: (i) Executive's abandonment of the Term, his employment or if the Executive's resignation for any reason other than Good Reason, (ii) termination of Executive's employment is terminated by the Executive Company for Good Reason following a Change in Control and before Cause, (iii) Executive's death, or (iv) the end expiration of the Termterm of Executive's employment with the Company as specified in Section 2 hereof on account of delivery of a written notice to the Company that Executive elects not to extend the term of this Agreement, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to as the case may be, his base salary through the Termination Date; provided, however, that in the event of a termination by reason of Executive's compliance with Section 10(gdeath, if Executive was employed by the Company hereunder for six months or more of any fiscal year as of the Termination Date, pay to Executive a pro rata portion (based on the number of calendar days of employment during that fiscal year) of this Agreement, any incentive compensation that would have been payable to him for such fiscal year pursuant to Section 4(b) hereof as if Executive had been in the lesser employ of the total of Executive’s then current base salary and prorated non-equity Company for the full fiscal year. No incentive bonus payouts as referenced above through compensation shall be payable to Executive with respect to any fiscal year in which Executive was employed by the end of the Term of the Agreement, or nine months of Executive’s current base salaryCompany hereunder for less than six months.

Appears in 3 contracts

Samples: Employment Agreement (PrimeWood, Inc.), Employment Agreement (PrimeWood, Inc.), Employment Agreement (PrimeWood, Inc.)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s his employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; or the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved)which the Termination Date occurs; and (iii) the amount of Executive’s then current base salary that Executive would have received a crisp $100 xxxx from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawW. Xxxx Xxxxxx. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurslaw. (c) If Executive's employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the Term, or if the Term by reason of Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Termdeath or Disability, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then his then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 3 contracts

Samples: Employment Agreement (Texas Roadhouse, Inc.), Employment Agreement (Texas Roadhouse, Inc.), Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s his employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company)reason; (ii) termination of Executive's employment by the Company for Cause (as defined below); or; (iii) expiration of the Term; (iv) termination of Executive's employment by the Company without Cause following expiration of the Term; or (v) Executive's death or Disability following expiration of the Term, the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual nonIncentive Bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs; (iii) an amount equal to Executive's then-equity bonus payouts under any noncurrent annual base salary, payable in equal installments over a twelve-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved)month period pursuant to the Company's regular payroll practices and procedures; and (iiiiv) an amount equal to the amount annual Incentive Bonus that Executive earned under Section 4(b) for the last full fiscal year of Executive’s then current base salary that Executive would have received from 's employment with the Termination Date through the date that is nine months following such Termination DateCompany. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic equal installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawlaw and continuing for 12 months thereafter. Any amount payable to Executive pursuant to Section Sections 10(b)(ii) shall be subject to deductions and withholdings and 10(b)(iv) shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurslaw. (c) If Executive's employment with the Company is terminated effective prior to the expiration of the Term by reason of Executive's death or Disability, the Company shall pay to Executive or his beneficiary or his estate, as the case may be, his then-current base salary through the Termination Date, any earned and unpaid annual Incentive Bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs and a pro-rated portion of any annual Incentive Bonus for the fiscal year in which the Termination Date occurs, based on the number of days during such fiscal year Executive was employed by the Company without Cause Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Company. (d) If, within twelve months following the occurrence of a Change in Control (as defined in this Agreement and before the end of the Termbelow), or if the Executive's employment with the Company is terminated by either Executive or the Executive Company for Good Reason following a Change in Control any reason, and before such termination is effective prior to the end expiration of the Term, then the Company shall pay to Executive, subject to Sections 10(i) and 10(j) of this Agreement and in lieu of any payments required by Sections 10(a) or 10(b) of this Agreement: (i) his then-current base salary through the Termination Date; (ii) any earned and unpaid annual Incentive Bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs; (iii) continued payments equal to Executive's compliance with then-current base salary, payable in equal installments pursuant to the Company's regular payroll practices and procedures, for the period from the Termination Date through the later of twelve months or the expiration of the Term; and (iv) for each full fiscal year from the Termination Date through the expiration of the Term, a payment equal to 50% of the Incentive Bonus for which Executive is eligible under Section 10(g4(b) of this Agreement, payable at such times that Incentive Bonuses would otherwise be payable to Executive pursuant to Section 4(b) if Executive were still employed with the lesser of Company. In the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through event that Executive becomes eligible for payments under this Section 10(d), the end of the Term of the Agreement, Company shall be released from its obligation to make any payments pursuant to Sections 10(a) or nine months of Executive’s current base salary10(b) above.

Appears in 3 contracts

Samples: Employment Agreement (Gander Mountain Co), Employment Agreement (Gander Mountain Co), Employment Agreement (Gander Mountain Co)

Payments Upon Termination of Employment. (a) If 12.1 Should the Executive's employment with be terminated prior to the Company is terminated announcement of a transaction or event constituting a Change of Control a) by reason of: (ithe Corporation for Cause or upon the death or the Incapacity of the Executive, or b) Executive's abandonment of Executive’s employment or upon the Executive's resignation without Good Reason, the Corporation shall pay to the Executive within ten (10) days following the termination of his employment, in one lump sum (less statutory deductions at source), the Basic Payments except for bonuses forming part of the Basic Payments which shall be paid in accordance with Section 5.2 of this Agreement. The Executive shall not be entitled to receive any pay in lieu of notice, severance pay or any indemnity whatsoever, other than the Basic Payments. 12.2 Should the Executive's employment be terminated prior to the announcement of a transaction or event constituting a Change of Control a) by the Corporation without Cause, or b) by the Executive for Good Reason, (1) the Corporation shall pay to the Executive (A) the Basic Payments, and (B) an amount (the "Termination Payment") equal to two (2) times the highest annual Base Salary paid or payable to the Executive during his employment hereunder (hereinafter, the "Highest Base Salary") plus two (2) times the highest aggregate bonuses paid or payable to him in respect of any year of his employment hereunder (hereinafter, the "Highest Aggregate Bonuses"), each payable in one lump sum (less statutory deductions at source) within ten (10) days following the termination of his employment, except for bonuses forming part of the Basic Payments which shall be paid in accordance with Section 5.2 of this Agreement, (2) the insurance, if any, then owned by the Executive or his designee for which the Corporation is responsible for the cost of the premiums in accordance with Section 7.4 shall forthwith be converted to, or replaced by a level deposit premium insurance policy to age 80, for the same insurance amount, which policy shall be owned by the Executive or his designee, and the Corporation shall pay directly to the insurance carrier the entire cost of the premium for such level deposit premium insurance policy (the "Insurance Covenant"), and (3) the Corporation shall forthwith acquire medical insurance coverage for the Executive, which coverage shall provide the Executive and his family with health, life, dental and other insurance coverage in Canada and the United States which is equivalent to the coverage theretofore maintained by the Corporation for the benefit of its senior executives and enjoyed by the Executive. Such coverage shall be for a term of five years and shall commence forthwith following the termination of the Executive's employment (the "Medical Insurance Covenant"). 12.3 Should the Executive's employment be terminated by the Corporation for any reason (whether with or not such resignation is without Cause) following the announcement of a transaction or event constituting a Change of Control or by the Executive (whether with or without Good Reason) following the completion of a transaction or event constituting a Change of Control, the Corporation shall pay to the Executive the Basic Payments and the Termination Payment, in each case as described, and payable on the dates set forth in writing or otherwise communicated to Section 12.2, and shall perform the Company); (ii) termination of Executive's employment by Insurance Covenant and the Company for Cause (Medical Insurance Covenant, as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above12.2. 12.4 In the event of the termination of the employment of the Executive for any reason, all indebtedness still owing by the following amounts: (i) Executive’s then-current base salary through Executive to the Termination Date; (ii) pro rata portions Corporation at the time of any quarterly such termination will be forgiven and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) extinguished and the Corporation will pay or reimburse to the Executive the amount of Executive’s then current base salary any taxes incurred by him in connection with any such forgiveness. 12.5 The Executive recognizes and accepts that Executive would have received the Corporation shall not, in any case, be responsible for any additional amount, indemnity in lieu of notice, severance pay or other damages arising from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date termination of the Company following the expiration of all applicable rescission periods his employment, except for those specifically provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursfor herein. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.

Appears in 3 contracts

Samples: Executive Employment Agreement (Optimal Robotics Corp), Executive Employment Agreement (Optimal Robotics Corp), Executive Employment Agreement (Optimal Robotics Corp)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) in a lump sum as compensation for services rendered to the Company: (1) a cash amount equal to the sum of (i) the Executive's full annual base salary from the Company and its affiliated companies through the Date of Termination, to the extent not theretofore paid, (ii) the Executive's annual bonus in an amount equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such termination occurs and (y) the average of the Executive's annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three (3) fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three (3) fiscal year period) immediately preceding the fiscal year in which such termination occurs, multiplied by a fraction, the numerator of which is the number of days in the fiscal year through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(g4) in an amount equal to (i) the Executive's highest annual base salary from the Company and its affiliated companies in effect during the twelve (12) month period prior to the Date of Termination multiplied by the number of years (including fractions thereof) remaining in the Executive's Employment Term as defined in the Employment Agreement but no less than two (2) years ("Severance Multiple"), plus (ii) the Severance Multiple times an amount equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such termination occurs and (y) the average of the Executive's annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three (3) fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three (3) fiscal year period) immediately preceding the fiscal year in which such termination occurs; provided, however, that any amount paid -------- ------- pursuant to this Agreement and Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (b) If during the Termination Period the employment of the Executive shall terminate other than by reason of a Nonqualifying Termination, in addition to the consideration described in payments to be made pursuant to paragraph (a) of this Section 4(b) above3, for a period equal to the Severance Multiple commencing on the Date of Termination, the following amounts: (i) Executive’s then-current base salary through Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Termination Date; (ii) pro rata portions Executive and his dependents with the same level of any quarterly coverage, upon the same terms and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then otherwise to the same extent as such policies shall have been in effect (provided that any applicable performance measures are achieved); and (iii) immediately prior to the amount Date of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions Termination, and withholdings and shall be paid to Executive by the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same periodic installments proportion as such costs were shared immediately prior to the Date of Termination; provided that, if Executive becomes eligible during such period to -------- participate in another group plan with respect to any such policies by reason of subsequent employment or otherwise, the Executive's coverage under the Company policies will terminate in accordance with the transition of coverage provisions in the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurspolicies. (c) If Executive's during the Termination Period the employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within thirty (30) days following the Date of Termination, subject a cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 2 contracts

Samples: Severance Agreement (Peapod Inc), Severance Agreement (Peapod Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive’s beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) the Executive’s then-current base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) an amount equal to the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any annual bonus in an amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments determined in accordance with the Company's regular payroll practices commencing on the first normal payroll date terms of the Company following Company’s annual incentive plan, multiplied by a fraction, the expiration numerator of all applicable rescission periods provided which is the number of days in the Company’s fiscal year prior to the Date of Termination and the denominator of which is 365 (which amount, notwithstanding the foregoing, shall be paid when and as bonuses under such plan are ordinarily paid), and (iii) any compensation previously deferred for the benefit of the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount which, when added to any other payments that must be taken into account for purposes of any computation relating to the Executive under Section 280G(b)(2)(A)(ii) of the Internal Revenue Code of 1986, as amended (the “Code”), equals, in the aggregate, 2.99 times the Executive’s “base amount,” as such term is defined in Section 280G(b)(3) of the Code; provided, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by law. Any amount payable the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (b) In addition to Executive the payments to be made pursuant to Section 10(b)(ii3(a) hereof, any stock options granted to the Executive under the Company’s 2004 Long Term Incentive Plan shall be subject to deductions and withholdings and shall be paid to Executive by treated in accordance with the Company in the same manner and at the same time that incentive bonus payments are made to current employees terms of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurssuch plan. (c) If Executive's employment is terminated by For a period of 36 months commencing on the Date of Termination, the Company without Cause following a Change shall continue to keep in Control full force and effect all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as defined such policies shall have been in this Agreement and before effect immediately prior to the end Date of Termination or as provided generally with respect to other peer executives of the TermCompany and its affiliated companies, or if and the Executive's employment is terminated by Company and the Executive for Good Reason following a Change in Control and before shall share the end costs of the Termcontinuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. (d) If during the Termination Period the employment of the Executive shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to Executive's compliance with Section 10(gthe sum of (1) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 2 contracts

Samples: Termination Agreement (Alberto Culver Co), Termination Agreement (Alberto Culver Co)

Payments Upon Termination of Employment. (a) If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's ’s abandonment of Executive’s his employment or Executive's ’s resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's ’s employment by the Company for Cause (as defined below); or (iii) termination of Executive's ’s employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's ’s employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved)which the Termination Date occurs; and (iii) the amount of Executive’s then current base salary that Executive would have received a crisp $100 xxxx from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawW. Xxxx Xxxxxx. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurslaw. (c) If Executive's ’s employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the TermTerm by reason of Executive’s death or Disability, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then his then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 2 contracts

Samples: Employment Agreement (Texas Roadhouse, Inc.), Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within ten (10) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (i1) a lump-sum cash amount equal to the sum of (A) Executive’s then-current 's unpaid base salary from the Company and its affiliated companies through the Date of Termination Date(without taking into account any reduction of base salary constituting Good Reason), (B) any bonus payments which have become payable, to the extent not theretofore paid, and (C) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest thereon) and any unpaid accrued vacation, each to the extent not theretofore paid; (ii2) to the extent not paid under the terms of such annual incentive compensation plan, a lump-sum cash amount equal to the target award for the Executive under the Company's annual incentive compensation plan for the fiscal year in which his Date of Termination occurs, reduced pro rata portions for that portion of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then the fiscal year not completed as of the end of the month in effect (provided that any applicable performance measures are achieved)which such Date of Termination occurs; and (iii3) a lump-sum cash amount equal to two (2) times the sum of (A) Executive's annual rate of base salary from the Company and its affiliated companies in effect immediately prior to the Date of Termination (not taking into account any reductions which would constitute Good Reason) plus (B) the amount average annualized bonus earned by the Executive from the Company (or its Subsidiaries) during the three fiscal years (or shorter annualized period if Executive had not been employed for the full three-year period) ending immediately prior to the year of the Change in Control. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, then for a period of thirty-six (36) months following the Date of Termination, the Company shall provide Executive (and Executive's dependents, if applicable) with the same level of medical, dental, accident, disability, and life insurance benefits upon substantially the same terms and conditions (including contributions required from Executive to receive such benefits) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, if Executive becomes reemployed with another employer and is eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s then current base salary 's eligibility, but only to the extent that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursbenefits promised hereunder. (c) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, and Executive has attained age fifty (50) with ten (10) years of service with the Company (or any of its affiliates) at the time of the Date of Termination, Executive shall be eligible to receive retiree medical benefits from the Company at the conclusion of the thirty-six (36) months of benefit coverage set forth in Section 3(b). The retiree medical benefits (including contributions required from Executive to receive such benefits) to be provided to Executive (and Executive's employment is terminated eligible dependents) by the Company without Cause following a shall be no less favorable than the benefits (and cost to Executive) under the retiree medical program as of immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as of immediately prior to the Change in Control as defined in Control), and shall be provided to Executive (and Executive's eligible dependents) notwithstanding any amendment to, or termination of, the Company's retiree medical program. (d) Any amount of severance paid pursuant to this Agreement and before the end Section 3 shall offset any other amount of severance to be received by Executive upon termination of employment of Executive under any other severance plan or policy of the TermCompany, or if including any employment agreement. (e) If during the Executive's Termination Period the employment is terminated of Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executive, subject Executive within ten (10) days following the Date of Termination a lump sum cash amount equal to the sum of (i) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current unpaid base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, (ii) any bonus payments which have become payable, to the Term of extent not theretofore paid, and (iii) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest thereon) and any unpaid accrued vacation, each to the Agreement, or nine months of Executive’s current base salaryextent not theretofore paid.

Appears in 1 contract

Samples: Change in Control Severance Agreement (One Valley Bancorp Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment of the Employee shall terminate, other than by reason of a Nonqualifying Termination, then ServiceMaster shall pay to the Employee (or the Employee’s beneficiary or estate), as compensation for services rendered to ServiceMaster and its affiliated companies: (1) a lump sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 5 and any applicable deferral election under a deferred compensation plan or arrangement maintained by ServiceMaster or any of its affiliated companies) equal to the sum of (i) the Employee’s full annual base salary from ServiceMaster and its affiliated companies through the Date of Termination, to the extent not previously paid, (ii) the Employee’s annual bonus under ServiceMaster’s and its affiliated companies’ annual bonus plan (ABP) in an amount equal to the annual bonus of the Employee earned pursuant to the terms of the ABP with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, to the extent not previously paid; provided, however, that for purposes of this subsection (a)(1)(ii), in the event the Date of Termination occurs during 2007, the amount shall equal the annual bonus payable in respect of 2006 pursuant to Section 4(b) of the Employee’s Employment Agreement dated as of June 30, 2006, (iii) any accrued vacation pay, to the extent not previously paid, and (iv) an amount equal to the Employee’s target annual ABP bonus (without regard to any amounts that would otherwise be deferred) immediately prior to the Change in Control (or if higher, the Employee’s target annual ABP bonus in respect of the fiscal year in which the Date of Termination occurs), multiplied by a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through and including the Date of Termination and the denominator of which is 365 or 366, as applicable; provided, however, that for purposes of this subsection (a)(1)(iv), in the event the Date of Termination occurs during 2006, the amount shall equal the sum of $150,000 plus the amount determined by multiplying $450,000 by a fraction, the numerator of which is the number of days from and including July 1, 2006 through and including the Date of Termination and the denominator of which is 184; plus (2) a lump sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 5) equal to the sum of (i) one (1) times the Employee’s highest annual base salary from ServiceMaster and its affiliated companies (without regard to any amounts that would otherwise be deferred) in effect during the 12-month period prior to the Date of Termination plus 1/12th of such base salary for each completed calendar month of service beginning July 1, 2006 through and including the Date of Termination (up to a maximum of 24 completed months at June 30, 2008), and (ii) one (1) times the Employee’s target annual ABP bonus (without regard to any amounts that would otherwise be deferred) immediately prior to the Change in Control (or, if higher, the target annual ABP bonus in respect of the fiscal year in which the Date of Termination occurs) plus 1/12th of such target annual ABP bonus for each completed calendar month of service beginning July 1, 2006 through and including the Date of Termination (up to a maximum of 24 completed months at June 30, 2008); provided, however, that if the Date of Termination shall occur in 2006, Employee’s target annual ABP bonus for purposes of this Section 3(a)(2) shall be $900,000; and provided, further, any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Employee upon termination of employment of the Employee under any severance plan, policy or arrangement of ServiceMaster or its affiliated companies. (1) In addition to the payments to be made pursuant to paragraph (a) of this Section 3, if on the Date of Termination the Employee shall not be fully vested in any employer contributions made on the Employee’s behalf under the ServiceMaster Profit Sharing and Retirement Plan or ServiceMaster Deferred Compensation Plan or any similar plan(s) of ServiceMaster or its affiliated companies, ServiceMaster shall pay to the Employee a lump sum cash amount equal to the value of the unvested portion of such employer contributions; provided, however, that if any payment pursuant to this Section 3(b)(1) may or would result in such payment being deemed a transaction which is subject to Section 16(b) of the Exchange Act, ServiceMaster shall make such payment so as to meet the conditions for an exemption from such Section 16(b) as set forth in the rules (and interpretive and no-action letters relating thereto) under Section 16. The value of any such unvested employer contributions shall be determined as of the Date of Termination; provided, however, that if ServiceMaster common stock (or any successor security) is traded on the New York Stock Exchange on the Date of Termination, the value of a share of ServiceMaster common stock (or any successor security) shall be the closing price on the New York Stock Exchange on the Date of Termination or, if such date is not a trading day, on the immediately preceding trading day. (2) For a period of one year plus one month for each completed calendar month of service beginning July 1, 2006 through and including the Date of Termination (up to a maximum of 24 completed months at June 30, 2008), commencing on the Date of Termination, ServiceMaster and its affiliated companies shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Employee and the Employee’s dependents with the Company is terminated same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the date of the Change in Control or, if more favorable to the Employee, as provided generally with respect to other peer employees of ServiceMaster and its affiliated companies, and ServiceMaster and the Employee shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the date of the Change in Control. After the expiration of such three-year period, the Employee shall be entitled to continue the Employee’s medical coverage under Federal law (COBRA). (c) If during the Termination Period the employment of the Employee shall terminate by reason of a Nonqualifying Termination, then ServiceMaster shall pay to the Employee: (1) a lump sum cash amount equal to the sum of: (i) Executive's abandonment the Employee’s full annual base salary from ServiceMaster and its affiliated companies through the Date of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated Termination, to the Company);extent not previously paid, and (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policyaccrued vacation pay, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved)extent not previously paid; and (iii2) any amounts payable pursuant to the amount terms of ExecutiveServiceMaster’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following and its affiliated companies’ ABP plan, as and when required pursuant to any such Termination Date. Any amount plan. (d) The amounts payable to Executive the Employee pursuant to Section 10(b)(iiiSections 3(a), 3(b)(1) and 3(c)(1) shall be subject to deductions and withholdings and paid within 30 days following the Date of Termination; provided, that any such amounts which constitute the payment of nonqualified deferred compensation, within the meaning of Section 409A of the Code, shall be paid to Executive by immediately following the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date six-month anniversary of the Company following the expiration Date of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.

Appears in 1 contract

Samples: Change in Control Severance Agreement (Servicemaster Co)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive’s beneficiary or estate), subject to Section 10(gwithin five (5) days following the Date of this Agreement and in addition Termination, as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (i) a lump-sum cash amount equal to the sum of (A) the Executive’s then-current base salary from the Company and its Subsidiaries through the Date of Termination Date;and any outstanding Bonus or long-term bonus awards for which payment is due and owing at such time, (B) any compensation previously deferred by the Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) (the “Deferred Amount”), plus an additional adjustment payment calculated in accordance with the formula set forth in Exhibit A hereto, (C) any accrued vacation pay, and (D) to the extent not provided under the Company’s Bonus plans, a pro-rata portion of the Executive’s Projected Bonus Amount for the Year in which the Executive’s Date of Termination occurs, in each case to the extent not theretofore paid; plus (ii) pro rata portions a lump-sum cash amount equal to the product of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iiiA) the amount lesser of (1) three (3) and (2) the quotient resulting from dividing the number of full and partial months from the Executive’s then current base salary that Date of Termination until the Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions Retirement, by twelve (12) and withholdings (B) the sum of (1) the Executive’s highest annual rate of base salary during the 12-month period immediately preceding the Date of Termination and (2) the highest of (x) the Executive’s average Bonus (annualized for any partial Years of employment) earned during the 3-Year period immediately preceding the Year in which the Date of Termination occurs (or shorter annualized period if the Executive had not been employed for the full three-Year period), (y) the Executive’s Target Bonus Amount for the Year in which the Change in Control occurs and (z) the Executive’s Target Bonus Amount for the Year in which the Date of Termination occurs; provided, that any amount paid pursuant to this Section 2(a)(ii) shall offset an equal amount of any severance relating to salary or bonus continuation to be paid to Executive received by the Executive upon termination of employment of the Executive under any severance plan, policy, or arrangement of the Company. (b) If during the Termination Period, the employment of the Executive shall terminate, other than by reason of a Nonqualifying Termination, for a period of three (3) years (or, if lesser, the period ending on the date on which the Executive would be subject to Retirement) commencing on the Date of Termination, the Company shall continue to keep in full force and effect (or otherwise provide) all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent (and on the same after-tax basis), as such policies shall have been in effect immediately prior to the Date of Termination (or, if more favorable to the Executive, immediately prior to the Change in Control), and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same periodic installments in accordance with proportion as such costs were shared immediately prior to the Company's regular payroll practices commencing on the first normal payroll date Date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's during the Termination Period the employment of the Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Executive shall be credited with three (3) years additional age and service credit for purposes of qualifying for any retiree medical benefits programs of the Company, although receipt of such retiree medical benefits shall not commence until the Executive is otherwise eligible under the terms of the retiree medical plan. If the Executive is terminated pursuant to a Nonqualifying Termination and would have been eligible to retire under the terms and conditions of the Company’s retiree medical program as of immediately prior to the Executive’s Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Change in Control), the Executive’s termination of employment shall be treated as a retirement under the Company’s retiree medical program. The retiree medical benefits (and cost) to be provided to the Executive (and the Executive’s eligible dependents) by the Company without Cause following a shall be no less favorable than the benefits (and cost) under the retiree medical program of the Company as of immediately prior to the Executive’s Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Change in Control as defined in this Agreement Control), and before shall be provided notwithstanding any amendment to, or termination of, the end Company’s retiree medical program. (d) If during the Termination Period the employment of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to the Executive within thirty (30) days following the Date of Termination, a cash amount equal to the sum of (i) the Executive’s base salary from the Company and its Subsidiaries through the Date of Termination and any outstanding Bonus or long-term bonus awards for which payment is due and owing at such time, subject (ii) any compensation previously deferred by the Executive other than pursuant to Executive's compliance a tax-qualified plan (together with Section 10(gany interest and earnings thereon), (iii) of this Agreementany accrued vacation pay, and (iv) if the lesser Nonqualifying Termination is other than for Cause, to the extent not provided under the Company’s Bonus plans, a pro-rata portion of the total of Executive’s then current base salary Earned Bonus Amount for the Year in which the Executive’s Date of Termination occurs, in each case to the extent not theretofore paid. (e) If subsequent to a Change in Control and prorated non-equity incentive bonus payouts as referenced above through the end of the Term Termination Period, the employment of the AgreementExecutive shall be terminated by the Company (other than by reason of a Nonqualifying Termination), or nine months the Company shall pay the Executive within five (5) days following his Date of Termination a lump sum cash payment equal to the sum of (i) the Executive’s current highest annual rate of base salarysalary during the 12-month period immediately preceding the Date of Termination and (ii) the higher of (A) the Executive’s average Bonus (annualized for any partial Years of employment) earned during the 3-Year period immediately preceding the Year in which the Date of Termination occurs and (B) the Executive’s Target Bonus Amount for the Year in which the Date of Termination occurs; provided, that any amount paid pursuant to clauses (i) and (ii) of this Section 2(e) shall offset an equal amount of any severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (f) If subsequent to a Change in Control and the end of the Termination Period, the employment of the Executive shall be terminated by the Company, the Company shall pay the Executive within five (5) days following his Date of Termination a lump sum cash payment equal to (i) the Executive’s base salary from the Company and its Subsidiaries through the Date of Termination and any outstanding Bonus or long-term bonus awards for which payment is due and owing at such time, (ii) any accrued vacation pay, and (iii) if the termination is other than for Cause, to the extent not provided under the Company’s Bonus plans, a pro-rata portion of the Executive’s Earned Bonus Amount for the Year in which the Executive’s Date of Termination occurs, in each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Change in Control Severance Agreement (Parker Hannifin Corp)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) as compensation for services rendered to the Company (i) in the event such employment terminates more than 60 days prior to a Change of Control, at such intervals as Executive's base salary and at such time as Executive's annual bonus would otherwise be paid, and (ii) in the event such employment terminates less than 60 days prior to a Change of Control or terminates after a Change of Control, within 30 days following the Date of Termination in a lump sum: (1) a cash amount equal to the sum of (i) the Executive's full annual base salary from the Company and its affiliated companies through the Date of Termination, to the extent not theretofore paid, (ii) the Executive's annual bonus in an amount at least equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such termination occurs and (y) the average of the Executive's annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three fiscal year period) immediately preceding the fiscal year in which such termination occurs, multiplied by a fraction, the numerator of which is the number of days in the fiscal year through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(g4) in an amount equal to (i) two (2) times (1.5 times if a Change of Control has not occurred) the Executive's highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) two (2) times (1.5 times if a Change of Control has not occurred) an amount at least equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such termination occurs and (y) the average of the Executive's annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three fiscal year period) immediately preceding the fiscal year in which such termination in which the termination occurs, provided, however, that in the event there are fewer than 24 -------- ------- (18 if a Change of Control has not occurred) whole months remaining from the Date of Termination to the Termination Date, the amount calculated in accordance with this Agreement Section 3(a)(2) shall be reduced as determined by multiplying such amount by a fraction the numerator of which is the number of months, including any partial month (with any partial month being expressed as a fraction the numerator of which is the number of days remaining in such month and the denominator of which is the number of days in such month), so remaining and the denominator of which is 24 (18 if a Change of Control has not occurred); provided further, that any amount paid pursuant to this Section 3(a)(2) shall be -------- ------- paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (b) If during the Termination Period the employment of the Executive shall terminate other than by reason of a Nonqualifying Termination, in addition to the consideration described payments to be made pursuant to paragraph (a) of this Section 3, for a period of two years (18 months if a Change in Section 4(bControl has not occurred) abovecommencing on the Date of Termination, the following amounts: (i) Executive’s then-current base salary through Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Termination Date; (ii) pro rata portions Executive and his dependents with the same level of any quarterly coverage, upon the same terms and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then otherwise to the same extent as such policies shall have been in effect (provided that any applicable performance measures are achieved); and (iii) immediately prior to the amount Date of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions Termination, and withholdings and shall be paid to Executive by the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same periodic installments proportion as such costs were shared immediately prior to the Date of Termination; provided that, if Executive -------- ---- becomes eligible during such period to participate in another group plan with respect to any such policies by reason of subsequent employment or otherwise, the Executive's coverage under the Company policies will terminate in accordance with the transition of coverage provisions in the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurspolicies. (c) If Executive's during the Termination Period the employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Peapod Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not a Nonqualifying Termination, and Executive agrees upon such resignation is set forth in writing or otherwise communicated termination to the Company); (ii) termination of Executive's employment execute such release as may be prepared by the Company for Cause (with respect to all tort and contract claims as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his well as claims brought under all applicable federal, state or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policylocal statutes, plan laws, regulations or procedure (without duplication of benefits). (b) Except ordinances, including those specified in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below12(b), then the Company shall pay to Executive (or Executive's beneficiary or estate) within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, Company a lump-sum cash amount equal to the following amountssum of: (i1) Executive’s then-current 's base salary through the Termination DateDate of Termination, to the extent not theretofore paid; (ii2) pro rata portions A PRO RATA portion of any quarterly and Executive's annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect an amount at least equal to: (provided that any applicable performance measures are achieved); and (iiii) the amount greatest of (A) not less than Executive’s then current base salary that Executive would have received from 's target bonus for the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the fiscal year in which the Change in Control occurs, (B) not less than Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs, and (C) Executive's actual bonus payout for the fiscal year in which Executive's Date of Termination occurs, multiplied by (ii) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365); (3) Any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; (4) Three times Executive's highest annual rate of base salary during the 12-month period prior to the Date of Termination; plus (5) Three times the greatest of: (i) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs, (ii) Executive's target bonus for Any amount paid pursuant to Sections 3(a)(4) and 3(a)(5) shall be in lieu of any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy of the Company. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of two (2) years following the Date of Termination but in no event after Executive's attainment of age 65, Executive (and Executive's dependents if applicable) with the same level of medical, dental, accident, disability, life insurance and any other similar benefits in place as of the Date of Termination upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); PROVIDED, THAT if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted or shall pay Executive a lump sum in cash equal to the then present value of such benefits. Notwithstanding the foregoing, in the event Executive becomes employed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to the benefits provided by the other employer during the period of Executive's eligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. Should the terminated Executive move his residence in order to pursue other business opportunities within two (2) years of the Date of Termination, the Company agrees to reimburse such Executive for any reasonable expenses incurred in that relocation (including taxes payable on the reimbursement) which are not reimbursed by another employer. Reimbursement shall include assistance in selling the Executive's home which was customarily provided by the Company to transferred executives prior to the Change in Control. The Executive shall be promptly reimbursed by the Company for up to $4,000 of fees and expenses charged to Executive by any executive recruiting, counseling or placement firms incurred in seeking new employment following the Date of Termination. The Company shall also pay to the Executive on demand in cash an "additional amount" such that the federal, state and local taxes on the aggregate of such reimbursements and the "additional amount" equal said "additional amount." The Company will also pay to the Executive on demand in cash up to $5,000 to provide the Executive with professional financial and tax planning assistance. If immediately prior to the Date of Termination the Company provided the Executive with any club memberships, the Executive will be entitled to continue such memberships at Executive's sole expense. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executive within thirty (30) days following the Date of Termination, a cash amount equal to the sum of (1) Executive's base salary through the Date of Termination, to the extent not theretofore paid, (2) any benefits or awards which have been earned or become payable pursuant to the terms of any compensation plan but which have not yet been paid to the Executive, subject and (3) any compensation previously deferred by Executive other than pursuant to Executive's compliance a tax-qualified plan (together with Section 10(gany interest and earnings thereon) of this Agreementand any accrued vacation pay, in each case to the lesser of extent not theretofore paid. The Company may make such additional payments, and provide such additional benefits, to Executive as the total of Executive’s then current base salary Company and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryExecutive may agree in writing.

Appears in 1 contract

Samples: Executive Severance Agreement (Lanier Worldwide Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump-sum cash amount equal to the sum of (i) Executive’s then-current 's base salary through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) a pro rata portions portion of any quarterly and Executive's annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect an amount at least equal to (provided that any applicable performance measures are achieved); and (iiiA) the amount greater of (1) Executive’s then current base salary that Executive would have received from 's target bonus for the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the fiscal year in which the Change in Control occurs and (2) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs, multiplied by (B) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365), and (iii) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid. (2) a lump-sum cash amount equal to (i)two (2) times Executive's highest annual rate of base salary during the 12-month period prior to the Date of Termination, plus (ii) two (2) times the greatest of (A) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs or (B) Executive's target bonus for the fiscal year in which the Change in Control occurs or (C) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs. Any amount paid pursuant to this Section 3(a)(2) shall reduce any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy or employment agreement of the Company. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of two (2) years following the Date of Termination, Executive (and Executive's dependents if applicable) with the same level of medical, dental, accident, disability and life insurance benefits upon substantially the same terms and conditions (including cost of coverage to Executive) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive's eligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within thirty (30) days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the Agreementextent not theretofore paid. The Company may make such additional payments, or nine months of Executive’s current base salaryand provide such additional benefits, to Executive as the Company and Executive may agree in writing.

Appears in 1 contract

Samples: Severance Agreement (Commonwealth Industries Inc/De/)

Payments Upon Termination of Employment. (a) If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's ’s abandonment of Executive’s his employment or Executive's ’s resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's ’s employment by the Company for Cause (as defined below); or (iii) termination of Executive's ’s employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's ’s employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved)which the Termination Date occurs; and (iii) the amount of Executive’s then current base salary that Executive would have received a crisp $100 xxxx from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawBoard. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurslaw. (c) If Executive's ’s employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the TermTerm by reason of Executive’s death or Disability, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then his then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 1 contract

Samples: Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (aIn the event of any termination by the Executive pursuant to Paragraph 7(c) If above, or in the event the Executive's employment with the Company under this Agreement is terminated by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (any reason other than one of those specified in Paragraphs 7(a) or 7(b) above, the Company shall, as defined below); orliquidated damages or severance pay, or both, promptly pay to the Executive and provide the Executive and the dependents, beneficiaries and estate of the Executive as follows: (iiia) termination of Executive's employment by the Company without Cause following expiration of the Term; the The Company shall pay the Executive, at his option, either as a lump sum or in equal monthly installments over the unexpired portion of the term of employment provided for in Paragraph 3(a) above, a cash amount equal to the present value of the excess of (i) the salary provided in Paragraph 4(a) above, as in effect at the time of termination, for a period of 12 months (commencing with the month in which termination shall have occurred) less the amounts, if any, the Executive his would have paid in cash in respect of employee benefits provided for in Paragraph 4(c)(iv) above if the Executive were still employed, over (ii) the amounts, if any, paid to the Executive pursuant to any severance or her then-current base salary through termination pay program or arrangement of the Termination Date and Company or any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)its subsidiaries. (b) Except The Company shall also pay the Executive a lump sum cash amount equal to the present value of the excess of (i) the aggregate benefit that would have been paid under the Retirement Program described in paragraph 4(c)(i) above as in effect on the case of a Change in Control, which is governed by Section 10(c) belowdate first above written, if Executive's employment with the Company is terminated by Executive had continued to be employed and to be entitled to service credit for eligibility and benefit purposes during the Company pursuant to Section 9(a)(i) effective prior to the expiration unexpired portion of the Term for any reason other than for Cause term of (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(ba) above, at an annual rate of compensation equal to that used to calculate the following amounts: (ipayments provided by Paragraph 8(a) above, calculated on the basis of the higher of the Executive’s then-current base 's salary through for the Termination Date; 12 months immediately preceding the month in which termination shall have occurred or the compensation amount used in the benefit formula under said Retirement Program, and assuming that the Executive is fully vested in such benefit, or (ii) pro rata portions the aggregate benefit actually payable under the Retirement Program and any successor retirement program of any quarterly the Company consisting of a tax-qualified pension plan and annual non-equity bonus payouts a related excess benefit plan. In clarification of the immediately preceding sentence, the aggregate benefit that would have been paid under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount Retirement Program shall be calculated as of Executive’s then current base salary that the normal or early retirement date for which the Executive would have received from qualified, assuming the Termination Date through Executive were still employed on that date and were fully vested in such benefit, and which would produce the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurshighest present value. (c) If Executive's employment is terminated The Company shall also pay the Executive a lump sum cash amount equal to the present value of the aggregate contributions or payments, if any, that would have been made by the Company without Cause following a Change or any of its subsidiaries under the Thrift and Savings Program described in Control as defined in this Agreement and before the end Paragraph 4(c)(ii) above, or any successor program of the TermCompany in effect on the date on which termination shall have occurred, or if the Executive's employment is terminated by Executive had continued to be employed, and to participate in the Thrift and Savings Program or such successor program to the same extent as the Executive participated for Good Reason following a Change in Control and before the end last month during which the Executive was permitted to participate, during the unexpired portion of the Termterm of employment provided for in Paragraph 3(a) above, then at an annual rate of compensation equal to that used to calculate the payments provided in Paragraph 8(a) above. (d) For purposes of calculating the lump such cash payments provided in Paragraphs 8(a), (b) and (c) above, present value shall be determined by using a discount factor equal to one percentage point below the prime rate as published in The Wall Street Journal as of the date on which termination shall have occurred. (e) For a period of 24 months (commencing with the month in which termination shall have occurred), the Executive shall continue to be entitled to all employee benefits provided for in paragraph 4(c)(iv) above, as if the Executive were still employed during such period under this Agreement, with benefits based upon the compensation used to calculate the payments provided by Paragraph 8(a) above, and if and to the extent that such benefits shall not be payable or provided under any such plan, the Company shall pay or provide such benefits on an individual basis. The medical, dental, health and welfare benefits provided for in Paragraph 4(c)(iv) above, in accordance with this Paragraph 8(e) shall be secondary to Executive, subject any comparable benefits provided by another employer provided that an appropriate refund is made of any reduction in the amount paid pursuant to Executive's compliance with Section 10(gParagraph 9(a)(i) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salarywhich had assumed that such benefits would be primary.

Appears in 1 contract

Samples: Employment Agreement (Aquarion Co)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive’s beneficiary or estate) within sixty (60) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump-sum cash amount equal to the sum of (i) Executive’s then-current base salary through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) a pro rata portions portion of Executive’s annual bonus in an amount at least equal to: (A) the greatest of (x) not less than Executive’s target bonus for the fiscal year in which the Change in Control occurs; (y) not less than Executive’s target bonus for the fiscal year in which Executive’s Date of Termination occurs; and (z) Executive’s actual bonus payout for the fiscal year in which Executive’s Date of Termination occurs (in the case of each of (x), (y) and (z), not including as bonus any quarterly and annual non-equity bonus payouts amount payable under any non-equity incentivethe Company’s Performance Reward Plan or a similar broad-based compensation plans then plan), multiplied by (B) a fraction, the numerator of which is the number of days in effect the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (provided that any applicable performance measures are achieved365); and , (iii) any unpaid accrued vacation pay and (iv) to the extent permissible under Section 409A of the Code, any other benefits or awards which have been earned or become payable pursuant to the terms of any compensation plan but which have not yet been paid to Executive; plus (2) a lump-sum cash amount equal to (i) ___ times Executive’s highest annual rate of base salary during the 12-month period prior to the Date of Termination, plus (ii) ___ times the greatest of: (A) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs; (B) not less than Executive’s target bonus for the fiscal year in which the Change in Control occurs; or (C) not less than Executive’s target bonus for the fiscal year in which Executive’s Date of Termination occurs (in the case of each of (A), (B) and (C), not including as bonus any amount payable under the Company’s Performance Reward Plan or a similar broad-based plan). Any amount paid pursuant to this Section 3(a) (2) shall be in lieu of any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy of the Company or under any employment agreement or offer letter between the Company and Executive. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of two (2) years following the Date of Termination but in no event after Executive’s attainment of age 65, Executive (and Executive’s dependents if applicable) with the same level of medical, dental, accident, disability, life insurance and any other similar benefits in place as of the Date of Termination upon substantially the same terms and conditions (including contributions required by Executive for such benefits) as existed immediately prior to Executive’s Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes employed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s then current base salary eligibility, but only to the extent that the Company reimburses Executive would have received from for any increased cost and provides any additional benefits necessary to give Executive the Termination benefits provided hereunder. Should the terminated Executive move his residence in order to pursue other business opportunities within two (2) years of the Date through of Termination, the date Company agrees to reimburse such Executive for any reasonable expenses incurred in that is nine months following such Termination Daterelocation (including taxes payable on the reimbursement) which are not reimbursed by another employer. Any amount payable to Executive pursuant to Section 10(b)(iii) Reimbursement shall be subject to deductions and withholdings and shall be paid to Executive include assistance in selling Executive’s home which was customarily provided by the Company to transferred executives prior to the Change in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawControl. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive promptly reimbursed by the Company for up to $4,000 of fees and expenses charged to him by any executive recruiting, counseling or placement firms incurred in seeking new employment following the same manner termination of employment as provided in this Agreement; provided, that such fees and expenses are incurred no later than the end of the second calendar year following the calendar year in which the Date of Termination occurs. The Company shall also pay to Executive, at the same time that incentive bonus payments such reimbursements are made paid, in cash an “additional amount” such that the federal, state and local taxes on the aggregate of such reimbursements and the “additional amount” equal said “additional amount.” The Company will also promptly reimburse Executive for up to current employees of $5,000 per calendar year for the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the calendar year in which the Date of Termination occurs and the next following calendar year of fees and expenses charged to Executive for professional financial and tax planning assistance. If immediately prior to the Date occursof Termination the Company provided Executive with any club memberships, Executive will be entitled to continue such memberships at Executive’s sole expense. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executive within sixty (60) days following the Date of Termination, a cash amount equal to the sum of (1) Executive’s base salary through the Date of Termination, to the extent not theretofore paid, (2) to the extent permissible under Section 409A of the Code, any benefits or awards which have been earned or become payable pursuant to the terms of any compensation plan but which have not yet been paid to Executive, subject and (3) any unpaid accrued vacation pay. The Company may make such additional payments, and provide such additional benefits, to Executive's compliance with Section 10(g) of this Agreement, Executive as the lesser of the total of Executive’s then current base salary Company and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryExecutive may agree in writing.

Appears in 1 contract

Samples: Executive Change in Control Severance Agreement (Harris Corp /De/)

Payments Upon Termination of Employment. (a) If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's ’s abandonment of Executive’s employment or Executive's ’s resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company)reason; (ii) termination of Executive's ’s employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; following notice by the Executive of non-renewal, pursuant to Section 1 above, the Company shall pay to Executive his or her the Executive’s then-current base salary through the Termination Date and any Annual Incentive Bonus earned but unpaid for the completed fiscal year preceding the fiscal year in which the Termination Date occurs; provided that such Annual Incentive Bonus payments shall be payable in the same manner and all other benefits at the same time that Annual Incentive Bonus payments are made to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication current employees of benefits)the Company. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's ’s employment with the Company is involuntarily terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), including without limitation the expiration of the Term following notice by the Company of non-renewal pursuant to Section 1 above, then the Company shall pay to Executiveshall, subject to Section 10(gSections 9(j) and 9(k) of this Agreement and in addition to any base salary earned through the consideration described Termination Date and any Annual Incentive Bonus earned but unpaid for the completed fiscal year preceding the fiscal year in Section 4(b) abovewhich the Termination Date occurs, the following amountspay to Executive: (i) an amount equal to Executive’s then-current annual base salary; and (ii) an amount equal to the Annual Incentive Bonus that Executive earned under Section 3(b) for the last full fiscal year of Executive’s employment with the Company. (c) If Executive’s employment with the Company terminates by reason of Executive’s death or Disability, the Company shall pay to Executive or Executive’s beneficiary or Executive’s estate, as the case may be, Executive’s then-current base salary through the Termination Date;, any earned and unpaid Annual Incentive Bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs and a pro-rated portion of any Annual Incentive Bonus for the fiscal year in which the Termination Date occurs, based on the number of days during such fiscal year Executive was employed by the Company, payable in the same manner and at the same time that Annual Incentive Bonus payments are made to current employees of the Company. (d) Notwithstanding the provisions of Sections 9(a) and 9(b), if, within twelve months following the occurrence of a Change in Control (as defined below), Executive’s employment with the Company is terminated by either Executive or the Company for any reason, then the Company shall, subject to Sections 9(j) and 9(k) of this Agreement and in addition to any base salary earned through the Termination Date and any Annual Incentive Bonus earned but unpaid for the preceding fiscal year, and in lieu of any payments required by Sections 9(a) or 9(b) of this Agreement, pay to Executive: (i) an amount equal to Executive’s then-current annual base salary; and (ii) pro rata portions of any quarterly and annual non-equity bonus payouts an amount equal to the Annual Incentive Bonus that Executive earned under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iiiSection 3(b) for the amount last full fiscal year of Executive’s then current base salary employment with the Company. In the event that Executive would have received becomes eligible for payments under this Section 9(d), the Company shall be released from the Termination Date through the date that is nine months following such Termination Date. its obligation to make any payments pursuant to Sections 9(a) or 9(b) above. (e) Any amount payable to Executive pursuant to Section 10(b)(iii9(b)(i) and 9(b)(ii) or pursuant to Section 9(d)(i) and 9(d)(ii), as applicable (the “Severance Amount”), shall be subject to deductions and withholdings and for applicable taxes but shall not be subject to deductions for any other amounts received by Executive as a result of future employment or otherwise. Fifty percent (50%) of the Severance Amount shall be paid to Executive by the Company in a lump sum on the same periodic first day of the seventh month after the Termination Date. The remaining balance of the Severance Amount shall be paid to Executive by the Company in equal installments in accordance with pursuant to the Company's ’s regular payroll practices and procedures (with each payment constituting a separate payment for purposes of Internal Revenue Code Section 409A), commencing on the first normal payroll date of the Company following the expiration date of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees payment of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law lump sum payment and no later than March 15th of the year following the year in which the Termination Date occurscontinuing for six months thereafter. (cf) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company Cause. “Cause” hereunder shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.mean:

Appears in 1 contract

Samples: Employment Agreement (Gander Mountain Co)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s his employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; or the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved)which the Termination Date occurs; and (iii) the amount of Executive’s then current base salary that Executive would have received a crisp $100 bill from the Termination Date through the date that is nine months following such Termination DateBoard. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant pursuxxx to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurslaw. (c) If Executive's employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the Term, or if the Term by reason of Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Termdeath or Disability, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then his then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 1 contract

Samples: Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive’s beneficiary or estate) within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump-sum cash amount equal to the sum of (i) Executive’s then-current base salary through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) a pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount portion of Executive’s then current base salary that Executive would have received from annual bonus in an amount at least equal to: (A) the Termination Date through greatest of (x) not less than Executive’s target bonus for the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the fiscal year in which the Change in Control occurs; (y) not less than Executive’s target bonus for the fiscal year in which Executive’s Date of Termination occurs; and (z) Executive’s actual bonus payout for the fiscal year in which Executive’s Date of Termination occurs, multiplied by (B) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365), and (iii) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount equal to (i) three (3) times Executive’s highest annual rate of base salary during the 12-month period prior to the Date of Termination, plus (ii) three (3) times the greatest of: (A) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs; (B) not less than Executive’s target bonus for the fiscal year in which the Change in Control occurs; or (C) not less than Executive’s target bonus for the fiscal year in which Executive’s Date of Termination occurs. Any amount paid pursuant to this Section 3(a)(2) shall be in lieu of any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy of the Company. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of two (2) years following the Date of Termination but in no event after Executive’s attainment of age 65, Executive (and Executive’s dependents if applicable) with the same level of medical, dental, accident, disability, life insurance and any other similar benefits in place as of the Date of Termination upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to Executive’s Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes employed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s eligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. Should the terminated Executive move his residence in order to pursue other business opportunities within two (2) years of the Date of Termination, the Company agrees to reimburse such Executive for any reasonable expenses incurred in that relocation (including taxes payable on the reimbursement) which are not reimbursed by another employer. Reimbursement shall include assistance in selling the Executive’s home which was customarily provided by the Company to transferred executives prior to the Change in Control. The Executive shall be promptly reimbursed by the Company for up to $4,000 of fees and expenses charged to him by any executive recruiting, counseling or placement firms incurred in seeking new employment following the termination of employment as provided in this Agreement. The Company shall also pay to the Executive on demand in cash an “additional amount” such that the federal, state and local taxes on the aggregate of such reimbursements and the “additional amount” equal said “additional amount.” The Company will also pay to the Executive on demand in cash up to $5,000 per year to provide the Executive with professional financial and tax planning assistance. If immediately prior to the Date of Termination the Company provided the Executive with any club memberships, the Executive will be entitled to continue such memberships at his sole expense. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executive within thirty (30) days following the Date of Termination, a cash amount equal to the sum of (1) Executive’s base salary through the Date of Termination, to the extent not theretofore paid, (2) any benefits or awards which have been earned or become payable pursuant to the terms of any compensation plan but which have not yet been paid to the Executive, subject and (3) any compensation previously deferred by Executive other than pursuant to Executive's compliance a tax-qualified plan (together with Section 10(gany interest and earnings thereon) of this Agreementand any accrued vacation pay, in each case to the lesser of extent not theretofore paid. The Company may make such additional payments, and provide such additional benefits, to Executive as the total of Executive’s then current base salary Company and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryExecutive may agree in writing.

Appears in 1 contract

Samples: Executive Employment Agreement (Harris Corp /De/)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump-sum cash amount equal to the sum of (i) Executive’s then-current 's base salary through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) a pro rata portions portion of any quarterly and Executive's annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect an amount at least equal to (provided that any applicable performance measures are achieved); and (iiiA) the amount greater of (1) Executive’s then current base salary that Executive would have received from 's target bonus for the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the fiscal year in which the Change in Control occurs and (2) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs, multiplied by (B) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365), and (iii) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid. (2) a lump-sum cash amount equal to (i) three (3) times Executive's highest annual rate of base salary during the 12-month period prior to the Date of Termination, plus (ii) three (3) times the greatest of (A) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs or (B) Executive's target bonus for the fiscal year in which the Change in Control occurs or (C) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs. Any amount paid pursuant to this Section 3(a)(2) shall reduce any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy or employment agreement of the Company. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of three (3) years following the Date of Termination, Executive (and Executive's dependents if applicable) with the same level of medical, dental, accident, disability and life insurance benefits upon substantially the same terms and conditions (including cost of coverage to Executive) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive's eligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within thirty (30) days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the Agreementextent not theretofore paid. The Company may make such additional payments, or nine months of Executive’s current base salaryand provide such additional benefits, to Executive as the Company and Executive may agree in writing.

Appears in 1 contract

Samples: Severance Agreement (Commonwealth Industries Inc/De/)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive, within 30 days following the Date of Termination, as compensation for services rendered to the Company: (1) a cash amount equal to the sum of (i) the Executive's full annual base salary from the Company and its affiliated companies through the Date of Termination and any short-term incentive compensation earned by the Executive for any performance period ending prior to the Date of Termination, in each case to the extent not theretofore paid, (ii) an amount equal to the Executive's annual base salary multiplied by the Executive's Target Percentage applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control), multiplied by 50%, multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable six-month performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is 180 (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the target short-term incentive compensation afforded by such different short-term incentive compensation opportunity for the applicable performance period in which the Date of Termination occurs (but not less than the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control), multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is the total number of days in such applicable performance period) and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(g5) in an amount equal to (i) three (3) times the Executive's highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) an amount equal to the product of three (3) times such annual base salary multiplied by the Executive's Target Percentage as applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control) (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the product of three (3) times the annual target short-term incentive compensation afforded by such different short-term incentive compensation opportunity, but not less than three (3) times the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control); provided, however, that any amount paid pursuant to this Agreement Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary, short-term incentive compensation or other bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. Notwithstanding the foregoing, if the Company is obligated by law or contract to pay severance pay, notice pay or other similar benefits, or if the Company is obligated by law or by contract to provide advance notice of separation ("Notice Period"), then the payments made pursuant to this Section 3(a)(2) shall be reduced by the amount of any such severance, notice pay or other similar benefits, as applicable, and in by the amount of any severance pay, notice pay or other similar benefits received during any Notice Period. (b) In addition to the consideration described in payments to be made pursuant to Section 4(b) above3(a), the following amounts: Company shall pay to the Executive at the time the payments pursuant to Section 3(a) shall be made, a lump-sum cash amount equal to the actuarial equivalent of the excess of (i) the Executive’s then-current base salary through 's accrued benefits under any qualified defined benefit pension plan and any nonqualified supplemental defined benefit pension plan of the Company in which the Executive is a participant, calculated by increasing the Executive's age and service credit under such plans as of the Date of Termination Date; by three (3) year(s) over (ii) pro rata portions the Executive's accrued benefits under such plans as of any quarterly the Date of Termination. Such lump sum cash amount shall be computed using the same actuarial methods and annual non-equity bonus payouts under any non-equity incentive-based compensation plans assumptions then in effect (use for purposes of computing benefits under such plans, provided that any applicable performance measures are achievedthe interest rate used in making such computation shall not be greater than the interest rate permitted under Section 417(e) of the Internal Revenue Code of 1986, as amended (the "Code"); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing , on the first normal payroll date Date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's employment is terminated by For a period of three (3) years commencing on the Date of Termination, the Company without Cause following a Change shall continue to keep in Control full force and effect all policies of medical and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as defined such policies shall have been in this Agreement and before effect immediately prior to the end Date of Termination or as provided generally with respect to other peer executives of the TermCompany and its affiliated companies, and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination; provided, however, that the medical and life insurance coverage provided pursuant to this Section 3(c) shall be in lieu of any other medical and life insurance coverage to which the Executive is entitled under any plan, policy or if arrangement of the Company or any law obligating the Company to provide such insurance coverage upon termination of employment of the Executive's . (d) If during the Termination Period the employment is terminated by of the Executive for Good Reason following shall terminate by reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to the Executive, subject within 30 days following the Date of Termination, a cash amount equal to the sum of: (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Avaya Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not a Nonqualifying Termination, and Executive agrees upon such resignation is set forth in writing or otherwise communicated termination to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policyexecute a release, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Controlsame form as attached hereto as Exhibit A, which is governed by Section 10(c) belowwith respect to all tort and contract claims, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)well as claims brought under all applicable federal, state or local statutes, laws, regulations or ordinances, then the Company shall pay to Executive (or Executive’s beneficiary or estate) within thirty (30) calendar days after the Company’s receipt of the signed release (and upon the expiration of any revocation rights in the release), subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) aboveCompany, a lump-sum cash amount equal to the following amountssum of: (ia) Executive’s then-current base salary through the Date of Termination Dateand any unpaid bonus for the fiscal year ending prior to the Date of Termination to the extent not theretofore paid; (b) A pro rata portion of Executive’s annual bonus in an amount at least equal to: (i) the greater of (A) 60% (or such higher percentage as shall then be applicable to Executive pursuant to the Euramax Incentive Bonus Plan (such plan being the “Bonus Plan” and such higher percentage being the “Higher Percentage”) for the fiscal year in which the Change of Control occurs) of Executive’s annualized base salary for the fiscal year in which the Change of Control occurs, and (B) 60% (or such Higher Percentage for the fiscal year in which the Date of Termination occurs) of Executive’s annualized base salary for the fiscal year in which Executive’s Date of Termination occurs, in either case, multiplied by (ii) pro rata portions a fraction, the numerator of any quarterly which is the number of calendar days in the fiscal year in which the Date of Termination occurs through the Date of Termination and annual nonthe denominator of which is three hundred sixty-equity bonus payouts under any non-equity incentive-based compensation plans then five (365); (c) Any accrued vacation pay to the extent not theretofore paid; (d) Three times Executive’s annualized rate of base salary in effect 30 days prior to the Date of Termination (provided that disregarding any applicable performance measures are achievedchange therein which constitutes Good Reason hereunder); and (iiie) the amount Three times 60% of Executive’s then current annualized base salary that Executive would have received from for the fiscal year in which Executive’s Date of Termination Date through the date that is nine months following such Termination Dateoccurs (disregarding any change therein which constitutes Good Reason hereunder). Any amount payable to Executive paid pursuant to Section 10(b)(iii) 2 shall be subject in lieu of any other amount of severance relating to deductions and withholdings and shall salary or bonus continuation to be paid to received by Executive by upon termination of employment of Executive under the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date Employment Agreement or under any severance plan or policy of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which during the Termination Date occurs. (c) If Period. After the Termination Period, if Executive's ’s employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change Reason, the Executive shall be entitled to receive the greater of (a) all amounts to which he would be entitled under Section 2.4(e) of his Employment Agreement and (b) severance amounts in Control accordance with whatever severance plans and before the end of the Term, then policies that the Company or the surviving entity after the Change of Control has in place for similarly situated employees on the Date of Termination, giving full service credit under all such plans for the period prior to the Change of Control during which Executive was employed by the Company. Nothing contained in this Agreement shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, in any way reduce or modify the lesser of the total of Executive’s then current base salary rights and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of payments under Executive’s current base salarySupplemental Executive Retirement Plan dated April 15, 2003 (the “SERP”) and no payment pursuant to the SERP shall reduce the benefits hereunder.

Appears in 1 contract

Samples: Executive Severance Agreement (Euramax International Inc)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s her employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; or the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s her then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved); andwhich the Termination Date occurs; (iii) the amount of Executive’s her then current base salary that Executive would have received from the Termination Date through the date that is nine months earlier of (A) 180 days following such Termination Date and (B) the Third Anniversary Date if her employment with the Company had not been terminated; and (iv) 50% of the aggregate quarterly Incentive Bonus earned by Executive for the last four full fiscal quarters immediately preceding the fiscal quarter in which the Termination Date occurs, provided, however, if the Termination Date occurs during the fiscal quarter ending on the Third Anniversary Date, the amount payable pursuant to this Section 10(b)(iv) shall be reduced by a fraction, the numerator of which is the number of days during such fiscal quarter that Executive was employed by the Company and the denominator of which is the number of days in such fiscal quarter. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of law. Any amount payable to Executive pursuant to Section 10(b)(iv) shall be paid to Executive by the year following Company on the year in which the Termination Date occurssame date as any payment would be made pursuant to Section 10(b)(ii) if Executive were entitled to such payment. (c) If Executive's employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the Term, or if the Term by reason of Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Termdeath or Disability, then the Company shall pay to ExecutiveExecutive or her beneficiary or her estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then her then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 1 contract

Samples: Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive, within 30 days following the Date of Termination, as compensation for services rendered to the Company: (1) a cash amount equal to the sum of (i) the Executive’s full annual base salary from the Company and its affiliated companies through the Date of Termination and any short-term incentive compensation earned by the Executive for any performance period ending prior to the Date of Termination, in each case to the extent not theretofore paid, (ii) an amount equal to the Executive’s annual base salary multiplied by the Executive’s Target Percentage applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control), multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable twelve-month performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is 360 (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the target short-term incentive compensation afforded by such different short-term incentive compensation opportunity for the applicable performance period in which the Date of Termination occurs (but not less than the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control), multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is the total number of days in such applicable performance period) and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(g5) in an amount equal to (i) times the Executive’s highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) an amount equal to the product of times such annual base salary multiplied by the Executive’s Target Percentage as applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control) (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the product of times the annual target short-term incentive compensation afforded by such different short-term incentive compensation opportunity, but not less than times the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control); provided, however, that any amount paid pursuant to this Agreement Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary, short-term incentive compensation or other bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. Notwithstanding the foregoing, if the Company is obligated by law or contract to pay severance pay, notice pay or other similar benefits, or if the Company is obligated by law or by contract to provide advance notice of separation (“Notice Period”), then the payments made pursuant to this Section 3(a)(2) shall be reduced by the amount of any such severance, notice pay or other similar benefits, as applicable, and in by the amount of any severance pay, notice pay or other similar benefits received during any Notice Period. (b) In addition to the consideration described in payments to be made pursuant to Section 4(b) above3(a), the following amounts: Company shall pay to the Executive at the time the payments pursuant to Section 3(a) shall be made, a lump-sum cash amount equal to the actuarial equivalent of the excess of (i) the Executive’s then-current base salary through accrued annuity benefits as of December 31, 2003 under any qualified defined benefit pension plan and any nonqualified supplemental defined benefit pension plan of the Company in which the Executive is a participant, calculated by increasing the Executive’s age and service credit under such plans as of the Date of Termination by year(s) over (ii) the Executive’s accrued annuity benefits under such plans as of December 31, 2003. Such excess payment will be discounted back to the Executive’s age as of the Termination Date; (ii) pro rata portions of any quarterly . Such lump sum cash amount shall be computed using the same actuarial methods and annual non-equity bonus payouts under any non-equity incentive-based compensation plans assumptions then in effect (use for purposes of computing benefits under such plans, provided that any applicable performance measures are achievedthe interest rate used in making such computation shall not be greater than the interest rate permitted under Section 417(e) of the Internal Revenue Code of 1986, as amended (the “Code”); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing , on the first normal payroll date Date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Furthermore, in addition to the payments to be made pursuant to Section 3(a) and 3(b), the Company shall pay to the Executive a lump-sum cash amount equal to (i) times the Savings Plan Amount plus (ii) times the Savings Restoration Plan Amount. The “Savings Plan Amount” and the “Savings Restoration Plan Amount” are the amounts that would have been credited to the Executive's employment is terminated ’s accounts as automatic company allocations and matching allocations under the Avaya Inc. Savings Plan for Salaried Employees (the “Savings Plan”) and the Avaya Inc. Savings Restoration Plan (the “Restoration Plan”), respectively, had the Executive remained employed by the Company without Cause for the twelve-month period following a Change in Control as defined in this Agreement the Termination Date (the “Period”). In determining the Savings Plan Amount and before the end Savings Restoration Plan Amount, the following shall be assumed: (i) the Executive’s aggregate contributions to each of the TermSavings Plan and the Restoration Plan for the Period would have been identical to the aggregate eligible contributions made by the Executive to the Savings Plan and Restoration Plan, or respectively, for the twelve-month period prior to the Termination Date (or, if contributions were made for a shorter period, then identical to the Executive's employment is terminated contributions made by the Executive for Good Reason following such shorter period), and (ii) the Executive’s annual base salary for the Period would have remained the same as on the Termination Date. (d) For a Change period of years commencing on the Date of Termination, the Company shall continue to keep in Control full force and before effect all policies of medical and life insurance with respect to the end Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination or as provided generally with respect to other peer executives of the TermCompany and its affiliated companies, and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination; provided, however, that the medical and life insurance coverage provided pursuant to this Section 3(d) shall be in lieu of any other medical and life insurance coverage to which the Executive is entitled under any plan, policy or arrangement of the Company or any law obligating the Company to provide such insurance coverage upon termination of employment of the Executive. (e) If during the Termination Period the employment of the Executive shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to the Executive, subject within 30 days following the Date of Termination, a cash amount equal to Executive's compliance with Section 10(gthe sum of: (1) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Avaya Inc)

Payments Upon Termination of Employment. (a) If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's ’s abandonment of Executive’s employment or Executive's ’s resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company)reason; (ii) termination of Executive's ’s employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; following notice by the Executive of non-renewal, pursuant to Section 1 above, the Company shall pay to Executive his or her the Executive’s then-current base salary through the Termination Date and any Annual Incentive Bonus earned but unpaid for the completed fiscal year preceding the fiscal year in which the Termination Date occurs; provided that such Annual Incentive Bonus payments shall be payable in the same manner and all other benefits at the same time that Annual Incentive Bonus payments are made to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication current employees of benefits)the Company. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's ’s employment with the Company is involuntarily terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), including without limitation the expiration of the Term following notice by the Company of non-renewal pursuant to Section 1 above, then the Company shall pay to Executiveshall, subject to Section 10(gSections 9(j) and 9(k) of this Agreement and in addition to any base salary earned through the consideration described Termination Date and any Annual Incentive Bonus earned but unpaid for the completed fiscal year preceding the fiscal year in Section 4(b) abovewhich the Termination Date occurs, the following amountspay to Executive: (i) an amount equal to 1.5 times Executive’s then-current annual base salary; and (ii) an amount equal to 1.5 times the Annual Incentive Bonus that Executive earned under Section 3(b) for the last full fiscal year of Executive’s employment with the Company. (c) If Executive’s employment with the Company terminates by reason of Executive’s death or Disability, the Company shall pay to Executive or Executive’s beneficiary or Executive’s estate, as the case may be, Executive’s then-current base salary through the Termination Date;, any earned and unpaid Annual Incentive Bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs and a pro-rated portion of any Annual Incentive Bonus for the fiscal year in which the Termination Date occurs, based on the number of days during such fiscal year Executive was employed by the Company, payable in the same manner and at the same time that Annual Incentive Bonus payments are made to current employees of the Company. (d) Notwithstanding the provisions of Sections 9(a) and 9(b), if, within twelve months following the occurrence of a Change in Control (as defined below), Executive’s employment with the Company is terminated by either Executive or the Company for any reason, then the Company shall, subject to Sections 9(j) and 9(k) of this Agreement and in addition to any base salary earned through the Termination Date and any Annual Incentive Bonus earned but unpaid for the preceding fiscal year, and in lieu of any payments required by Sections 9(a) or 9(b) of this Agreement, pay to Executive: (i) an amount equal to 1.5 times Executive’s then-current annual base salary; and (ii) pro rata portions of any quarterly and annual non-equity bonus payouts an amount equal to 1.5 times the Annual Incentive Bonus that Executive earned under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iiiSection 3(b) for the amount last full fiscal year of Executive’s then current base salary employment with the Company. In the event that Executive would have received becomes eligible for payments under this Section 9(d), the Company shall be released from the Termination Date through the date that is nine months following such Termination Date. its obligation to make any payments pursuant to Sections 9(a) or 9(b) above. (e) Any amount payable to Executive pursuant to Section 10(b)(iii9(b)(i) and 9(b)(ii) or pursuant to Section 9(d)(i) and 9(d)(ii), as applicable (the “Severance Amount”), shall be subject to deductions and withholdings and for applicable taxes but shall not be subject to deductions for any other amounts received by Executive as a result of future employment or otherwise. One-third (1/3) of the Severance Amount shall be paid to Executive by the Company in a lump sum on the same periodic first day of the seventh month after the Termination Date. The remaining balance of the Severance Amount shall be paid to Executive by the Company in equal installments in accordance with pursuant to the Company's ’s regular payroll practices and procedures, commencing on the first normal payroll date of the Company following the expiration date of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees payment of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law lump sum payment and no later than March 15th of the year following the year in which the Termination Date occurscontinuing for twelve months thereafter. (cf) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company Cause. “Cause” hereunder shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.mean:

Appears in 1 contract

Samples: Employment Agreement (Gander Mountain Co)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive, within 30 days following the Date of Termination, as compensation for services rendered to the Company: (1) a cash amount equal to the sum of (i) the Executive’s full annual base salary from the Company and its affiliated companies through the Date of Termination and any short-term incentive compensation earned by the Executive for any performance period ending prior to the Date of Termination, in each case to the extent not theretofore paid, (ii) an amount equal to the Executive’s annual base salary multiplied by the Executive’s Target Percentage applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control), multiplied by 50%, multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable six-month performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is 180 (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the target short-term incentive compensation afforded by such different short-term incentive compensation opportunity for the applicable performance period in which the Date of Termination occurs (but not less than the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control), multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is the total number of days in such applicable performance period) and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(g5) in an amount equal to (i) three (3) times the Executive’s highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) an amount equal to the product of three (3) times such annual base salary multiplied by the Executive’s Target Percentage as applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control) (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the product of three (3) times the annual target short-term incentive compensation afforded by such different short-term incentive compensation opportunity, but not less than three (3) times the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control); provided, however, that any amount paid pursuant to this Agreement Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary, short-term incentive compensation or other bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. Notwithstanding the foregoing, if the Company is obligated by law or contract to pay severance pay, notice pay or other similar benefits, or if the Company is obligated by law or by contract to provide advance notice of separation (“Notice Period”), then the payments made pursuant to this Section 3(a)(2) shall be reduced by the amount of any such severance, notice pay or other similar benefits, as applicable, and in by the amount of any severance pay, notice pay or other similar benefits received during any Notice Period. (b) In addition to the consideration described in payments to be made pursuant to Section 4(b) above3(a), the following amounts: Company shall pay to the Executive at the time the payments pursuant to Section 3(a) shall be made, a lump-sum cash amount equal to the actuarial equivalent of the excess of (i) the Executive’s then-current base salary through accrued benefits under any qualified defined benefit pension plan and any nonqualified supplemental defined benefit pension plan of the Company in which the Executive is a participant, calculated by increasing the Executive’s age and service credit under such plans as of the Date of Termination Date; by three (3) year(s) over (ii) pro rata portions the Executive’s accrued benefits under such plans as of any quarterly the Date of Termination. Such lump sum cash amount shall be computed using the same actuarial methods and annual non-equity bonus payouts under any non-equity incentive-based compensation plans assumptions then in effect (use for purposes of computing benefits under such plans, provided that any applicable performance measures are achievedthe interest rate used in making such computation shall not be greater than the interest rate permitted under Section 417(e) of the Internal Revenue Code of 1986, as amended (the “Code”); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing , on the first normal payroll date Date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's employment is terminated by For a period of three (3) years commencing on the Date of Termination, the Company without Cause following a Change shall continue to keep in Control full force and effect all policies of medical and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as defined such policies shall have been in this Agreement and before effect immediately prior to the end Date of Termination or as provided generally with respect to other peer executives of the TermCompany and its affiliated companies, and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination; provided, however, that the medical and life insurance coverage provided pursuant to this Section 3(c) shall be in lieu of any other medical and life insurance coverage to which the Executive is entitled under any plan, policy or if arrangement of the Company or any law obligating the Company to provide such insurance coverage upon termination of employment of the Executive's . (d) If during the Termination Period the employment is terminated by of the Executive for Good Reason following shall terminate by reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to the Executive, subject within 30 days following the Date of Termination, a cash amount equal to Executive's compliance with Section 10(gthe sum of: (1) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Avaya Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) as compensation for services rendered to the Company (i) in the event such employment terminates more than 60 days prior to a Change of Control, at such intervals as Executive's base salary and at such time as Executive's annual bonus would otherwise be paid, and (ii) in the event such employment terminates less than 60 days prior to a Change of Control or terminates after a Change of Control, within 30 days following the Date of Termination in a lump sum: (1) a cash amount equal to the sum of (i) the Executive's full annual base salary from the Company and its affiliated companies through the Date of Termination, to the extent not theretofore paid, (ii) the Executive's annual bonus in an amount at least equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such termination occurs and (y) the average of the Executive's annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three fiscal year period) immediately preceding the fiscal year in which such termination occurs, multiplied by a fraction, the numerator of which is the number of days in the fiscal year through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(g4) in an amount equal to (i) two (2) times (1.5 times if a Change of Control has not occurred) the Executive's highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) two (2) times (1.5 times if a Change of Control has not occurred) an amount at least equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such termination occurs and (y) the average of the Executive's annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three fiscal year period) immediately preceding the fiscal year in which such termination in which the termination occurs, provided, however, that in the event there are fewer than 24 (18 if a Change of Control has not occurred) whole months remaining from the Date of Termination to the Termination Date, the amount calculated in accordance with this Agreement Section 3(a)(2) shall be reduced as determined by multiplying such amount by a fraction the numerator of which is the number of months, including any partial month (with any partial month being expressed as a fraction the numerator of which is the number of days remaining in such month and the denominator of which is the number of days in such month), so remaining and the denominator of which is 24 (18 if a Change of Control has not occurred); provided further, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (b) If during the Termination Period the employment of the Executive shall terminate other than by reason of a Nonqualifying Termination, in addition to the consideration described payments to be made pursuant to paragraph (a) of this Section 3, for a period of two years (18 months if a Change in Section 4(bControl has not occurred) abovecommencing on the Date of Termination, the following amounts: (i) Executive’s then-current base salary through Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Termination Date; (ii) pro rata portions Executive and his dependents with the same level of any quarterly coverage, upon the same terms and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then otherwise to the same extent as such policies shall have been in effect (provided that any applicable performance measures are achieved); and (iii) immediately prior to the amount Date of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions Termination, and withholdings and shall be paid to Executive by the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same periodic installments proportion as such costs were shared immediately prior to the Date of Termination; provided that, if Executive becomes eligible during such period to participate in another group plan with respect to any such policies by reason of subsequent employment or otherwise, the Executive's coverage under the Company policies will terminate in accordance with the transition of coverage provisions in the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurspolicies. (c) If Executive's during the Termination Period the employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Peapod Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of Executive shall terminate pursuant to a Qualifying Termination, then the Company is terminated by reason ofshall provide to Executive: (i1) Within ten (10) days following the Date of Termination a lump-sum cash amount equal to the sum of (A) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Date of Termination Date and any and bonus amounts which have become payable, to the extent not previously paid or deferred, plus (B) any accrued vacation pay, to the extent not previously paid; plus (2) Subject to Section 4(c) below, a cash severance amount equal to one (1) times Executive’s highest annual rate of base salary during the 12-month period immediately prior to Executive’s Date of Termination, paid in equal installments over the one-year period commencing with the first regular payroll date following the Date of Termination in accordance with the Company’s normal payroll practices; provided that, if necessary to avoid tax penalties under Section 409A of the Internal Revenue Code of 1986, as amended, the commencement of such payments shall be delayed until the first regular payroll date which occurs more than six months following the Date of Termination, with the first of such payments including all other benefits to payments which Executive may be entitled under any applicable Company policywould have been made during the period of such delay without regard thereto, plan or procedure (without duplication of benefits)interest. (b) Except in If during the case Termination Period the employment of Executive shall terminate other than by reason of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Qualifying Termination, then the Company shall pay to ExecutiveExecutive within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition a lump-sum cash amount equal to the consideration described in Section 4(b) above, the following amounts: sum of (i1) Executive’s then-current base salary through the Date of Termination Date; and any bonus amounts which have become payable, to the extent not previously paid or deferred, and (ii2) pro rata portions of any quarterly accrued vacation pay, to the extent not previously paid. (c) Executive acknowledges and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided agrees that any applicable performance measures and all payments to which Executive may become entitled under Section 4(a)(2) above are achieved); and (iii) the amount of conditioned upon and subject to Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following execution of, and not having revoked within any applicable revocation period, a general release and waiver, in such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) reasonable and customary form as shall be subject to deductions and withholdings and shall be paid to Executive prepared by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided claims Executive may have against the Company, any Subsidiary and their respective directors, officers and affiliates, except as to (i) matters covered by law and no later than March 15th provisions of the year following the year in which the Termination Date occurs. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before that expressly survive the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) termination of this Agreement, (ii) rights to indemnification and insurance under the lesser Charter, By-Laws and directors and officers insurance policies maintained by the Company or any Subsidiary and (iii) rights to which Executive is entitled by virtue of his participation in the employee benefit plans, policies and arrangements of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, Company or nine months of Executive’s current base salaryany Subsidiary.

Appears in 1 contract

Samples: Change in Control Severance and Retention Agreement (Sterling Bancorp)

Payments Upon Termination of Employment. (a) If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's ’s abandonment of Executive’s her employment or Executive's ’s resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's ’s employment by the Company for Cause (as defined below); or (iii) termination of Executive's ’s employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's ’s employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(h) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s her then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved); andwhich the Termination Date occurs; (iii) the amount of Executive’s her then current base salary that Executive would have received from the Termination Date through the date that is nine months 180 days following such Termination Date; and (iv) $50,000.00. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's ’s regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law; provided, however, that at the option of the Compensation Committee and if in compliance with Code Section 409A, amounts payable pursuant to Section 10(b)(iii) may be paid in a lump sum. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year law. Any amount payable to Executive pursuant to Section 10(b)(iv) shall be paid in which the Termination Date occursa lump sum. (c) If Executive's ’s employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the TermTerm of this Agreement, or if the Executive's ’s employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's ’s compliance with Section 10(g10(h) of this Agreement, the lesser of the total of Executive’s an amount equal to her then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months paid in the same periodic installments in accordance with the Company’s regular payroll practices, but in no event will the Company pay the Executive less than one year of her current base salary and incentive bonus. At the option of the Compensation Committee and if in compliance with Code Section 409A, amounts payable pursuant to Section 10(c) may be paid in a lump sum. (d) If Executive’s employment with the Company is terminated effective prior to the expiration of the Term by reason of Executive’s death or Disability, the Company shall pay to Executive or her beneficiary or her estate, as the case may be; (i) her then-current base salarysalary through the Termination Date; (ii) any earned and unpaid annual Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in which the Termination Date occurs; (iii) the amount of her then current base salary that Executive would have received from the Termination Date through the date that is 180 days following such Termination Date; and (iv) $50,000.00. Any amount payable to Executive pursuant to Section 10(d)(iii) shall be subject to deductions and withholdings and shall be paid to Executive or her estate or beneficiary by the Company in the same periodic installments in accordance with the Company’s regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law; provided, however, that at the option of the Compensation Committee and if in compliance with Code Section 409A, amounts payable pursuant to Section 10(d)(iii) may be paid in a lump sum. Any amount payable to Executive or her estate or beneficiary pursuant to Section 10(d)(ii) shall be paid to Executive or her estate or beneficiary by the Company in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive or her estate or beneficiary pursuant to Section 10(d)(iv) shall be paid in a lump sum.

Appears in 1 contract

Samples: Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's ’s abandonment of Executive’s employment or Executive's ’s resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company)reason; (ii) termination of Executive's ’s employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; following notice by the Executive of non-renewal, pursuant to Section 1 above, the Company shall pay to Executive his or her the Executive’s then-current base salary through the Termination Date and any Annual Incentive Bonus earned but unpaid for the completed fiscal year preceding the fiscal year in which the Termination Date occurs; provided that such Annual Incentive Bonus payments shall be payable in the same manner and all other benefits at the same time that Annual Incentive Bonus payments are made to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication current employees of benefits)the Company. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's ’s employment with the Company is involuntarily terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), including without limitation the expiration of the Term following notice by the Company of non-renewal pursuant to Section 1 above, then the Company shall pay to Executiveshall, subject to Section 10(gSections 9(j) and 9(k) of this Agreement and in addition to any base salary earned through the consideration described Termination Date and any Annual Incentive Bonus earned but unpaid for the completed fiscal year preceding the fiscal year in Section 4(b) abovewhich the Termination Date occurs, the following amountspay to Executive: (i) an amount equal to Executive’s then-current annual base salary; and (ii) an amount equal to the Annual Incentive Bonus that Executive earned under Section 3(b) for the last full fiscal year of Executive’s employment with the Company. (c) If Executive’s employment with the Company terminates by reason of Executive’s death or Disability, the Company shall pay to Executive or Executive’s beneficiary or Executive’s estate, as the case may be, Executive’s then-current base salary through the Termination Date;, any earned and unpaid Annual Incentive Bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs and a pro-rated portion of any Annual Incentive Bonus for the fiscal year in which the Termination Date occurs, based on the number of days during such fiscal year Executive was employed by the Company, payable in the same manner and at the same time that Annual Incentive Bonus payments are made to current employees of the Company. (d) Notwithstanding the provisions of Sections 9(a) and 9(b), if, within twelve months following the occurrence of a Change in Control (as defined below), Executive’s employment with the Company is terminated by either Executive or the Company for any reason, then the Company shall, subject to Sections 9(j) and 9(k) of this Agreement and in addition to any base salary earned through the Termination Date and any Annual Incentive Bonus earned but unpaid for the preceding fiscal year, and in lieu of any payments required by Sections 9(a) or 9(b) of this Agreement, pay to Executive: (i) an amount equal to Executive’s then-current annual base salary; and (ii) pro rata portions of any quarterly and annual non-equity bonus payouts an amount equal to the Annual Incentive Bonus that Executive earned under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iiiSection 3(b) for the amount last full fiscal year of Executive’s then current base salary employment with the Company. In the event that Executive would have received becomes eligible for payments under this Section 9(d), the Company shall be released from the Termination Date through the date that is nine months following such Termination Date. its obligation to make any payments pursuant to Sections 9(a) or 9(b) above. (e) Any amount payable to Executive pursuant to Section 10(b)(iii9(b)(i) and 9(b)(ii) or pursuant to Section 9(d)(i) and 9(d)(ii), as applicable (the “Severance Amount”), shall be subject to deductions and withholdings and for applicable taxes but shall not be subject to deductions for any other amounts received by Executive as a result of future employment or otherwise. Fifty percent (50%) of the Severance Amount shall be paid to Executive by the Company in a lump sum on the same periodic first day of the seventh month after the Termination Date. The remaining balance of the Severance Amount shall be paid to Executive by the Company in equal installments in accordance with pursuant to the Company's ’s regular payroll practices and procedures, commencing on the first normal payroll date of the Company following the expiration date of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees payment of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law lump sum payment and no later than March 15th of the year following the year in which the Termination Date occurscontinuing for six months thereafter. (cf) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company Cause. “Cause” hereunder shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.mean:

Appears in 1 contract

Samples: Employment Agreement (Gander Mountain Co)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company Executive is terminated by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)a Qualifying Termination, then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition provide to the consideration described in Section 4(b) above, the following amountsExecutive: (a) a lump-sum cash payment equal to the result of multiplying (i) the sum of (A) the Executive’s thenBase Salary, plus (B) the Executive’s Bonus Amount by (ii) [one (1)] [one and a half (1.5)]; (b) a lump-current sum cash payment equal to the Executive’s base salary through the Date of Termination Dateand any bonus amounts for completed fiscal years, to the extent not theretofore paid or deferred; (iic) pro rata portions a lump-sum cash payment equal to the Executive’s target annual bonus for the fiscal year in which the Date of Termination occurs, multiplied by a fraction the numerator of which shall be the number of days the Executive was employed by the Company during the fiscal year in which the Date of Termination occurred and the denominator of which is 365; (d) a lump-sum cash payment equal to the after-tax value (based on the highest Federal and State tax rates) of the Company-provided annual health care for the Executive and/or the Executive’s family at the Date of Termination, multiplied by [one (1)] [one and a half (1.5)]; (e) for a period of one (1) year following the Date of Termination, the Company shall make outplacement services available to the Executive in accordance with its outplacement policy in effect immediately before the Change in Control (or if no such policy is in effect, the Executive may choose a provider of outplacement services, provided that the total cost of such outplacement services for the Executive shall not exceed $20,000); (f) to the extent not theretofore paid or provided, any quarterly and annual non-equity bonus payouts other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved)plan, program, policy or practice or other contract or agreement of the Company and its affiliated companies through the Date of Termination; and (iiig) the amount full vesting of all Executive’s then current base salary that Executive would have received from outstanding Equity Incentive Compensation awards (for the Termination Date through avoidance of doubt, the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to vesting provided in this Section 10(b)(iii3(g) shall be subject in addition to, and not in lieu of, the change in control vesting provided under the Company’s stock and incentive plans or award agreements issued thereunder). The Company shall not be required to deductions make the payments and withholdings provide the benefits specified in this Section 3 unless the Executive executes and delivers to the Company an agreement releasing the Company, its affiliates and its officers, directors and employees from all liability (other than the payments and benefits under this Agreement) in the form attached hereto as Exhibit A (the “RELEASE”). The Release shall be provided to the Executive no later than two (2) days after the Date of Termination, must be executed by the Executive and become effective and not be revoked by the Executive by the 55th day following the Date of Termination. Subject to the Release becoming effective as provided above, the payments and benefits provided in Section 3 shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date within sixty (60) days of the Company following the expiration Date of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.

Appears in 1 contract

Samples: Change in Control Severance Agreement (Southern Union Co)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s his employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; or the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved); andwhich the Termination Date occurs; (iii) the amount of Executive’s his then current base salary that Executive would have received from the Termination Date through the date that is nine months earlier of (A) 90 days following such Termination Date and (B) the Third Anniversary Date if his employment with the Company had not been terminated; and (iv) 25% of the aggregate quarterly Incentive Bonus earned by Executive for the last four full fiscal quarters immediately preceding the fiscal quarter in which the Termination Date occurs, provided, however, if the Termination Date occurs during the fiscal quarter ending on the Third Anniversary Date, the amount payable pursuant to this Section 10(b)(iv) shall be reduced by a fraction, the numerator of which is the number of days during such fiscal quarter that Executive was employed by the Company and the denominator of which is the number of days in such fiscal quarter. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of law. Any amount payable to Executive pursuant to Section 10(b)(iv) shall be paid to Executive by the year following Company on the year in which the Termination Date occurssame date as any payment would be made pursuant to Section 10(b)(ii) if Executive were entitled to such payment. (c) If Executive's employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the Term, or if the Term by reason of Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Termdeath or Disability, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then his then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 1 contract

Samples: Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions a bonus in an amount at least equal to the average annualized incentive compensation awards paid or payable pursuant to any annual incentive compensation plan, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid deferral, to Executive by the Company in and its affiliated companies during the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date five fiscal years of the Company following (or if Executive shall have performed services for the expiration Company and its affiliated companies for four (4) fiscal years or less, the years during which Executive performed services) immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of all applicable rescission periods provided by law. Any which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, to the extent not theretofore paid, (iii) any amount payable credited to Executive pursuant under any defined contribution nonqualified deferred compensation plan sponsored by any Parent Company or the Company, and any other compensation previously deferred by Executive (together with any interest and earnings thereon), in each case to Section 10(b)(iithe extent not theretofore paid, and (iv) shall be subject any accrued unpaid vacation pay; (2) a lump-sum cash amount in an amount equal to deductions (i) three (3) times Executive's highest annual base salary from the Company and withholdings and shall be its affiliated companies in effect during the twelve (12) month period prior to the Date of Termination, plus (ii) three (3) times Executive's average annualized incentive compensation awards, paid or payable, including by reason of any deferral, to Executive by the Company in and its affiliated companies during the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date five (5) fiscal years of the Company following (or if Executive shall have performed services for the expiration of all applicable rescission periods provided by law Company and no later than March 15th of its affiliated companies for four fiscal years or less, the year following years during which Executive performed services) immediately preceding the fiscal year in which the Change in Control occurs; provided, however, that in the event there are fewer than twenty-four (24) whole months remaining from the Date of Termination to the date of Executive's 70th birthday, the amount calculated in accordance with this Section 3(a)(2) shall be reduced by multiplying such amount by a fraction the numerator of which is the number of months, including a partial month (with a partial month being expressed as a fraction the numerator of which is the number of days remaining in such month and the denominator of which is the number of days in such month), so remaining and the denominator of which is twenty-four (24) months; provided further, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance pay to be received by Executive upon termination of employment of Executive under any severance plan, policy or arrangement of the Company. (b) In addition to the payments to be made pursuant to paragraph (a) of this Section 3, the Company will pay Executive the following additional compensation and benefits (1) For a period of three (3) years commencing on the Date occursof Termination, the Company shall continue to keep in full force and effect all medical, accident, disability and life insurance plans with respect to Executive and Executive's dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such plans shall have been in effect immediately prior to the Date of Termination. Notwithstanding the foregoing sentence, if any of the medical, accident, disability or life insurance plans then in effect generally with respect to other peer executives of the Company and its affiliated companies would be more favorable to Executive, such plan coverage shall be substituted for the analogous plan coverage provided to Executive immediately prior to the Date of Termination, and the Company and Executive shall share the costs of such plan coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. The obligation of the Company to continue coverage of Executive and Executive's dependents under such plans shall cease at such time as Executive and Executive's dependents obtain comparable coverage under another plan, including a plan maintained by a new employer. Execution of this Agreement by Executive shall not be considered a waiver of any rights or entitlements Executive and Executive's dependents may have under applicable law to continuation of coverage under the group health plan maintained by the Company or its affiliated companies. (2) Company and Parent Company agree to amend this provision to include severance payments related to any deferred compensation after a Deferred Compensation Plan is defined for Executive. The failure to amend this provision in no way negates or any other provision of this Agreement which will remain in full force and effect. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within thirty (30) days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance full annual base salary from the Company through the Date of Termination, to the extent not theretofore paid, and (2) any compensation previously deferred by Executive (together with Section 10(gany interest and earnings thereon) of this Agreementand any accrued vacation pay, in each case to the extent not theretofore paid. (d) Notwithstanding the foregoing or anything to the contrary herein, the lesser Executive's employment shall also be deemed to have been terminated within the Termination Period other than by reason of a Nonqualifying Termination if: (1) the Executive's employment is terminated without Cause prior to a Change in Control (or, if later, prior to the consummation of the total transaction, the approval of Executive’s then current base salary which by the Company's members constitutes a Change in Control under Section 1(d)(1)(B) or (C), or the approval of which by any Parent Company's stockholders constitutes a Change in Control under Section 1(d)(2)(C) or (D) hereof) and prorated non-equity incentive bonus payouts as referenced above through such termination was at the end request or direction of a Person who has entered into an agreement with the Company or Parent Company the consummation of which or the approval of which by the Company's members or Parent Company's stockholders would constitute a Change in Control; (2) the Executive terminates his employment with Good Reason prior to a Change of Control (or, if later, prior to the consummation of the Term transaction, the approval of which by the Company's members constitutes a Change in Control under Section 1(d)(1)(B) or (C), or the approval of which by any Parent Company's stockholders constitutes a Change in Control under Section 1(d)(2)(C) or (D) hereof) and the circumstance or event which constitutes Good Reason occurs at the request, direction or in consideration of a Person who has entered into an agreement with the Company or Parent Company the consummation of which or the approval of which by the Company's members or Parent Company's stockholders would constitute a Change in Control; or (3) the Executive's employment is terminated without Cause prior to a Change in Control (or, if later, prior to the consummation of the Agreementtransaction, the approval of which by the Company's members constitutes a Change in Control under Section 1(d)(1)(B) or (C), or nine months the approval of Executive’s current base salarywhich by any Parent Company's stockholders constitutes a Change in Control under Section 1(d)(2)(C) or (D) hereof) and such termination is otherwise in connection with or in anticipation of a Change in Control which actually occurs.

Appears in 1 contract

Samples: Severance Agreement (Kansas City Power & Light Co)

Payments Upon Termination of Employment. (a) If 17.1. Should the Executive's ’s employment with the Company is be terminated by reason of: (i) at any time by the Corporation for Cause or (ii) upon the Executive's abandonment ’s resignation without Good Reason, the Corporation shall pay to the Executive, within ten (10) days following the termination of his employment, in one lump sum (less statutory deductions at source), the Basic Payments. 17.2. Should the Executive’s employment be terminated at any time upon the death or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration Incapacity of the Term; Executive, the Company Corporation shall pay to the Executive (or his or her then-current base salary through estate, as applicable), within ten (10) days following the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policytermination of his employment, plan or procedure in one lump sum (without duplication of benefitsless statutory deductions at source). (b) Except , the Basic Payments plus his earned but unpaid bonuses, calculated pro rata, in the case of the fiscal year during which termination of employment occurs, on a Change in Controlper diem basis from the first day of such fiscal year to the date of termination, which is governed by bonus shall be paid at the moment set forth in Section 10(c) below, if 5.2 of this Agreement. 17.3. Should the Executive's ’s employment with the Company is be terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Corporation without Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive or by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date resignation of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurs. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before Reason, the end of the Term, then the Company Corporation shall pay to Executivethe Executive (i) the Basic Payments plus his earned but unpaid bonuses, subject calculated pro rata for the fiscal year during which termination of employment occurs, on a per diem basis from the first day of such fiscal year to Executive's compliance with the date of termination, and (ii) 12 months of Base Salary, in each case to be paid within ten (10) days following the termination of his employment, in one lump sum (less statutory deductions at source) (except that the bonus forming part of the Basic Payments will be paid at the moment set forth in Section 10(g) 5.2 of this Agreement). 17.4. The Executive recognizes and accepts that the Corporation shall not, in any case, be responsible for any additional amount, indemnity in lieu of notice, severance pay or other damages arising from the lesser termination of his employment, except for those specifically provided for herein. 17.5. The Executive shall give to the Corporation a full and satisfactory release upon receipt of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryamounts described in this Article 17.

Appears in 1 contract

Samples: Employment Agreement (Enerkem Inc.)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate), subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(bCompany and the Subsidiary: (1) abovewithin 30 days following the Date of Termination, a lump-sum cash amount equal to the following amountssum of: (i) the Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date;Date of Termination, to the extent not theretofore paid, (ii) pro rata portions the Executive's annual bonus in an amount at least equal to the average annualized (for any fiscal year consisting of less than 12 full months) bonus paid or payable, including by reason of any quarterly deferral, to the Executive by the Company and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then its affiliated companies in effect (provided that any applicable performance measures are achieved); respect of the three fiscal years of the Company immediately preceding the fiscal year in which the Change -6- in Control occurs, multiplied by a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) within 30 days following the Date of Termination, a lump-sum cash amount of in an amount equal to the Executive’s then current 's highest annual base salary that Executive would have received from the Termination Company and its affiliated companies in effect during the 12-month period prior to the Date through the date of Termination; provided, however, that is nine months following such Termination Date. Any any amount payable to Executive paid pursuant to this Section 10(b)(iii3(a)(2) shall be subject paid in lieu of any other amount of severance relating to deductions salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (1) For a period of one year commencing on the Date of Termination, the Company shall continue to keep in full force and withholdings effect all medical, dental, accident, disability and life insurance plans with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such plans shall have been in effect immediately prior to the Date of Termination. Notwithstanding the foregoing sentence, if any of the medical, dental, accident, disability or life insurance plans then in effect generally with respect to other peer executives of the Company and its affiliated companies would be more favorable to the Executive, such plan coverage shall be paid substituted for the analogous plan coverage provided to the Executive immediately prior to the Date of Termination, and the Company or the Subsidiary, as the case may be, and the Executive shall share the costs of such plan coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. The obligation of the Company and the Subsidiary to continue coverage of the Executive and the Executive's dependents under such plans shall cease at such time as the Executive and the Executive's dependents obtain comparable coverage under another plan, including a plan maintained by a new employer. Execution of this Agreement by the Executive shall not be considered a waiver of any rights or entitlements the Executive and the Executive's dependents may have under applicable law to continuation of coverage under the group medical plan maintained by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of or its affiliated companies. (2) highest annual base salary from the Company following and its affiliated companies in effect during the expiration 12-month period prior to the Date of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's during the Termination Period the employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a lump-sum cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary from the Company and prorated non-equity incentive bonus payouts as referenced above its affiliated companies through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Bell Sports Corp)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within ten (10) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (i1) a lump-sum cash amount equal to the sum of (A) Executive’s then-current 's unpaid base salary from the Company and its affiliated companies through the Date of Termination Date(without taking into account any reduction of base salary constituting Good Reason), (B) any bonus payments which have become payable, to the extent not theretofore paid, and (C) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest thereon) and any unpaid accrued vacation, each to the extent not theretofore paid; (ii2) to the extent not paid under the terms of such annual incentive compensation plan, a lump-sum cash amount equal to the target award for the Executive under the Company's annual incentive compensation plan for the fiscal year in which his Date of Termination occurs, reduced pro rata portions for that portion of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then the fiscal year not completed as of the end of the month in effect (provided that any applicable performance measures are achieved)which such Date of Termination occurs; and (iii3) a lump-sum cash amount equal to three (3) times the sum of (A) Executive's annual rate of base salary from the Company and its affiliated companies in effect immediately prior to the Date of Termination (not taking into account any reductions which would constitute Good Reason) plus (B) the amount average annualized bonus earned by the Executive from the Company (or its Subsidiaries) during the three fiscal years (or shorter annualized period if Executive had not been employed for the full three-year period) ending immediately prior to the year of the Change in Control. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, then for a period of thirty-six (36) months following the Date of Termination, the Company shall provide Executive (and Executive's dependents, if applicable) with the same level of medical, dental, accident, disability, and life insurance benefits upon substantially the same terms and conditions (including contributions required from Executive to receive such benefits) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, if Executive becomes reemployed with another employer and is eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s then current base salary 's eligibility, but only to the extent that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursbenefits promised hereunder. (c) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, and Executive has attained age fifty (50) with ten (10) years of service with the Company (or any of its affiliates) at the time of the Date of Termination, Executive shall be eligible to receive retiree medical benefits from the Company at the conclusion of the thirty-six (36) months of benefit coverage set forth in Section 3(b). The retiree medical benefits (including contributions required from Executive to receive such benefits) to be provided to Executive (and Executive's employment is terminated eligible dependents) by the Company without Cause following a shall be no less favorable than the benefits (and cost to Executive) under the retiree medical program as of immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as of immediately prior to the Change in Control as defined in Control), and shall be provided to Executive (and Executive's eligible dependents) notwithstanding any amendment to, or termination of, the Company's retiree medical program. (d) Any amount of severance paid pursuant to this Agreement and before the end Section 3 shall offset any other amount of severance to be received by Executive upon termination of employment of Executive under any other severance plan or policy of the TermCompany, or if including any employment agreement. (e) If during the Executive's Termination Period the employment is terminated of Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executive, subject Executive within ten (10) days following the Date of Termination a lump sum cash amount equal to the sum of (i) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current unpaid base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, (ii) any bonus payments which have become payable, to the Term of extent not theretofore paid, and (iii) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest thereon) and any unpaid accrued vacation, each to the Agreement, or nine months of Executive’s current base salaryextent not theretofore paid.

Appears in 1 contract

Samples: Change in Control Severance Agreement (One Valley Bancorp Inc)

Payments Upon Termination of Employment. (a) If If, during the Termination Period, the employment of the Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Executive shall be entitled to the following payments and benefits: (1) The Company shall pay to the Executive (or the Executive's employment with ’s beneficiary or estate) within 30 days after the Date of Termination, as compensation for services rendered to the Company is terminated by reason ofand its affiliated companies: (i) Executive's abandonment a lump sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 5) equal to the sum of (x) the Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated full annual base salary from the Company and its affiliated companies through the Date of Termination, to the extent not theretofore paid, (y) the Executive’s annual bonus under the Company’s or its affiliated companies’ annual bonus plan earned with respect to the fiscal year immediately prior to the fiscal year in which the Date of Termination occurs, to the extent not theretofore paid and (z) an amount equal to the Executive’s target annual bonus (without regard to any amounts that would otherwise be deferred) immediately prior to the Effective Time (or if higher, the Executive’s target annual bonus in respect of the fiscal year in which the Date of Termination occurs);, multiplied (in the case of clause (z) only) by a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable; plus (ii) termination a lump sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 5) equal to the sum of [one (1)] [two (2)] [three (3)] times the Executive's employment ’s highest annual base salary from the Company and its affiliated companies (without regard to any amounts that would otherwise be deferred) in effect during the 12-month period prior to the Date of Termination and [one (1)] [two (2)] [three (3)] times the Executive’s target annual bonus (without regard to any amounts that would otherwise be deferred) immediately prior to the Date of Termination (or, if higher, the average of the annual bonuses paid or payable, including by reason of any deferral, to the Executive by the Company in respect of the three fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for Cause (as defined belowless than such three fiscal year period) immediately preceding the fiscal year in which the Effective Time occurs); or. (iii2) termination For a period of [one] [two] [three] years commencing on the Date of Termination, the Company and its affiliated companies shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Executive and the Executive's employment ’s dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Effective Time or, if more favorable to the Executive, as provided generally with respect to other peer employees of the Company and its affiliated companies, and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Effective Time. After the expiration of such [one] [two] [three]-year period, the Executive shall be entitled to continue the Executive’s medical coverage under applicable law (COBRA). (3) Each long-term incentive award granted to the Executive, including without limitation each option, restricted stock, restricted stock unit and other equity-based award, shall become fully vested, and to the extent any such award is subject to the attainment of specified performance measures, such performance measures shall be deemed satisfied at the target level. (4) For a period of [twelve] [six] months commencing on the Date of Termination, the Executive shall receive outplacement assistance services from an outplacement agency selected by the Company without Cause following expiration of the Term; Executive and the Company shall pay all costs of such services; provided that such costs shall not exceed $15,000 in the aggregate. (5) Any amounts paid or benefits provided pursuant to this Section 3(a) shall be paid in lieu of any other amount of severance or consulting compensation that would otherwise be received by the Executive his or her then-current base salary through upon termination of employment of the Termination Date and any and all other benefits to which Executive may be entitled under any applicable severance plan, policy or arrangement of the Company policyor its affiliated companies, plan or procedure (without duplication of benefits)including any consulting compensation payable under the Employment Agreement. (b) Except in If, during the case Termination Period, the employment of the Executive shall terminate by reason of a Change in ControlNonqualifying Termination, which or if for any other reason the Executive is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior not entitled to the expiration of the Term for any reason other than for Cause (as defined belowpayments and benefits set forth in Section 3(a), then the Company rights of the Executive to consulting compensation shall pay to Executive, subject to Section 10(g) of this Agreement and in addition be determined pursuant to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date terms of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursEmployment Agreement. (c) If the Executive's ’s employment is terminated by the Company without Cause following a Change in Control as defined in prior to the Effective Time at the direction or request of Newco, and the Merger is thereafter consummated, then for purposes of this Agreement and before the end employment of the Term, Executive shall be deemed to have been terminated as of the first day of the Termination Period and the Executive shall be entitled to the benefits set forth in Section 3(a); provided that such benefits shall be reduced and offset by any severance or if the Executive's employment is terminated consulting benefits received by the Executive for Good Reason following a Change in Control and before prior to the end of Effective Time pursuant to the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, Employment Agreement or nine months of Executive’s current base salaryotherwise.

Appears in 1 contract

Samples: Change in Control Severance Agreement (West Corp)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump sum cash amount equal to the sum of (i) Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions Executive's annual bonus in an amount at least equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such Change in Control occurs and (y) the average of the Executive's annual bonus (annualized for any fiscal year consisting of less than 12 full months) with respect to which bonus paid or payable, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid deferral, to Executive by the Company and its affiliated companies in respect of the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date two fiscal years of the Company following (or such portion thereof during which Executive performed services for the expiration Company if Executive shall have been employed by the Company for less than such two fiscal year period) immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of all which is the number of days in the fiscal year in which the Change in Control occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable rescission periods provided by law. Any amount payable payroll or other taxes required to Executive be withheld pursuant to Section 10(b)(ii6) shall be subject in an amount equal to deductions (i) 2.5 times (1.0 times if a Change in Control has not occurred) Executive's highest annual base salary from the Company and withholdings and shall be its affiliated companies in effect during the 12-month period prior to the Date of Termination plus (ii) 2.5 times ([1.0 times if a Change in Control has not occurred) Executive's highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which Executive has been employed by the Company for less than 12 full months), bonus paid or payable, including by reason of any deferral, to Executive by the Company and its affiliated companies in the same manner and at the same time that incentive bonus payments are made to current employees respect of the Company, but no earlier than the first normal payroll date five fiscal years of the Company following (or such portion thereof during which Executive performed services for the expiration of all applicable rescission periods provided Company if Executive shall have been employed by law and no later the Company for less than March 15th of such five fiscal year period) immediately preceding the year following the fiscal year in which the Change in Control occurs; provided however, that any amount paid pursuant to this Section 4(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan, policy or arrangement of the Company. (b) For a period of 2.5 years (12 months if a Change in Control has not occurred) commencing on the Date of Termination, the Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination or, if more favorable to Executive, as provided generally with respect to other peer executives of the Company and its affiliated companies, and the Company and Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date occursof Termination. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the Agreement, or nine months of Executive’s current base salaryextent not theretofore paid.

Appears in 1 contract

Samples: Employment Agreement (Whitehall Jewellers Inc)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause Cause, Disability or death, or if Executive resigns for Good Reason, the Company shall pay Executive his Base Salary through the date specified in the notice of termination and all other unpaid amounts to which Executive is entitled as of the date specified in the notice of termination under any Company employee benefit, fringe benefit or incentive compensation plan or program at the time such payments are due (including, without limitation and when due, any Annual Bonus to the extent unpaid in respect of the calendar year ending prior to the date of termination). In addition, subject to Executive’s continued compliance with Sections 5, 7, 8 and 9 hereof, in lieu of any severance benefits Executive would otherwise be eligible to receive under any employment agreement or arrangement with the Company or under the Company’s severance plan, if any, contingent upon Executive’s return to the Company, and non-revocation, of a signed release of the Company and its Affiliates in the form and substance as defined belowset forth in Exhibit A, upon the 65th day following Executive’s Termination Date, the Executive shall be entitled to the following benefits: (i) a single lump sum payment of an amount equal to the product of (a) the greater of (x) two or (y) the number of years (and fraction thereof) remaining in the Agreement Term as of the notice of termination, (the “Separation Period”), times (b) Executive’s full Base Salary then in effect; (ii) a single lump sum payment of an amount equal to Executive’s target Annual Bonus for the calendar year in which the date of termination occurs; (iii) a single lump sum payment of an amount equal to the annual bonus for the calendar year prior to the year in which the date of termination occurs multiplied by a fraction, the numerator of which is the number of days in that calendar year to and including the date of termination and the denominator of which is 365; (iv) subject to the provisions of Section 13 hereof, reimbursement of the cost of continuation coverage of group health coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for the duration of the applicable period to the extent Executive elects such continuation coverage and is eligible and subject to the terms of the plan and the law (collectively, the “Reimbursement Payments”) together with an additional amount, payable within ten (10) business days following the end of the applicable COBRA period, such that the net amount retained by the Executive, after deduction of any Federal, state and local income and employment taxes and Excise Tax upon the Reimbursement Payments, shall be equal to the Reimbursement Payments; provided the obligation to provide such payments shall cease if the Executive is covered by comparable programs of a subsequent employer; (v) reimbursement for expenses reasonably incurred by the Executive in securing outplacement assistance through a professional person or entity of Executive’s choice, subject to approval by the Company (which approval shall not be unreasonably withheld, conditioned or delayed), at a level commensurate with the Executive’s position for a period of one (1) year commencing on or before the one year anniversary of the Termination Date at the Executive’s election, provided that the cost to the Company does not exceed Thirty-Five Thousand Dollars ($35,000), but in no event extending beyond the earlier to occur of (i) the second calendar year following the calendar year in which the Termination Date occurred and (ii) the date the Executive commences other full-time employment. The Company shall reimburse the Executive as soon as practicable, but in no event later than the end of the Executive’s third calendar year following the calendar year in which the Termination Date occurred; and (vi) continued participation under any long term equity incentive plan with respect to any awards granted to Executive prior to his termination of employment with the Company or a Company Affiliate which awards are subject to vesting upon satisfaction of incentive or performance goals or objectives established by the Board or Compensation Committee, and which if subsequently vested shall be distributed to Executive (subject to applicable withholding) at the time similarly vested awards are distributed to other executives of the Company. (b) If Executive’s employment with the Company is terminated for Cause or the Executive terminates employment with the Company without Good Reason, the Company shall pay Executive his Base Salary through the date specified in the notice of termination and all other unpaid amounts to which Executive is entitled as of the date specified in the notice of termination under any Company employee benefit, fringe benefit or incentive compensation plan or program at the time such payments are due (including, without limitation and when due, any Annual Bonus to the extent unpaid in respect of the calendar year ending prior to the date of termination). (c) If the Executive’s employment is terminated by the Executive’s death, the Company shall pay to the Executive’s estate, subject or as may be directed by the legal representatives to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) abovesuch estate, the following amounts: (i) the Executive’s then-current base salary Base Salary in effect on the date immediately prior to the Executive’s death, through the Termination Date; Executive’s date of death; (ii) pro rata portions all other unpaid amounts, if any, to which the Executive is entitled as of any quarterly and annual non-equity bonus payouts the date of the Executive’s death, under any non-equity incentive-based Company fringe benefit or incentive compensation plans then plan or program, at the time such payments would otherwise ordinarily be due (including, without limitation, any Annual Bonus to the extent unpaid in effect (provided that any applicable performance measures are achievedrespect of the calendar year ending prior to the date of the Executive’s death); and (iii) the Executive’s full Base Salary that would have been payable to the Executive from the Executive’s date of death through the Third Anniversary of the Effective Date; and (iv) an amount equal to the product of the target Annual Bonus for the calendar year in which the Executive died multiplied by a fraction the numerator being the number of days Executive was employed by the Company in the calendar year of his death and the denominator being 365. Such payment shall be made in a lump sum within 45 days after Executive’s death. In addition, if the Executive’s employment is terminated by the Executive’s death, all time-based employment conditions under any long-term equity incentive plan awards will be waived and, with respect to long-term equity incentive plan awards which are subject to vesting upon satisfaction of performance goals or objectives, Executive’s participation in the long-term equity plan shall be continued such that if such performance goals or objectives are satisfied, such awards will be distributed (subject to applicable withholding) to Executive’s estate at the time similarly vested awards are distributed to other executives of the Company. (d) Following the exhaustion of all sick days to which the Executive is entitled under the sick leave policy applicable to senior executives of the Company, while the Executive is Disabled and through his Termination Date (the “Disability Period”), the Company shall, in lieu of his Base Salary, shall pay to the Executive: (i) a disability benefit equal to 50% of his Base Salary that he would otherwise be entitled to receive for the Disability Period in accordance with its regular pay cycle; (ii) subject to the terms and conditions of the Company’s applicable employee benefit, fringe benefit or incentive compensation plans and programs, all other unpaid amounts, if any, to which the Executive is then entitled as of the date of his disability under such employee benefit, fringe benefit and incentive compensation plans and programs at the time such payments are due (including, without limitation and when due, any Annual Bonus to the extent unpaid in respect of the calendar year ending prior to the date of Executive’s then current base salary disability); (iii) the Executive’s full Base Salary that Executive would have received been payable to the Executive from the Termination Date through the date that is nine months following such third anniversary of the Effective Date, in a lump sum within 65 days of the Termination Date. Any ; and (iv) an amount payable equal to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date product of the Company following target Annual Bonus for the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the calendar year in which the Termination Date occurs. (c) If Executive's employment occurred multiplied by a fraction, the numerator of which is terminated the number of days during such year in which the Executive was employed by the Company without Cause following and the denominator of which is 365, in a Change in Control as defined in this Agreement and before the end lump sum within 65 days of the TermTermination Date; provided, however, that any amount paid to the Executive during the Disability Period shall be reduced by any amount paid or if payable under the Executive's employment is terminated Company’s disability plans (unless such disability plans have reduced benefits thereunder by the Executive for Good Reason following a Change in Control and before the end of the Term, then amount paid by the Company shall pay to Executive, subject the Executive during the Disability Period). Subject to Executive's compliance with Section 10(g) the terms of this Agreement, the lesser Executive shall not be required to perform services for the Company while he is Disabled. If Executive’s employment is terminated due to his being Disabled, all time-based employment conditions under any long-term equity incentive plan awards will be waived and, with respect to long-term equity incentive plan awards which are subject to vesting upon satisfaction of performance goals or objectives, Executive’s participation in the long-term equity plan shall be continued such that if such performance goals or objectives are satisfied, such awards will be distributed to Executive (subject to applicable withholding) at the time similarly vested awards are distributed to other executives of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 1 contract

Samples: Employment Agreement (USA Mobility, Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive’s beneficiary or estate) within sixty (60) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump-sum cash amount equal to the sum of (i) Executive’s then-current base salary through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) a pro rata portions portion of Executive’s annual bonus in an amount at least equal to: (A) the greatest of (x) not less than Executive’s target bonus for the fiscal year in which the Change in Control occurs; (y) not less than Executive’s target bonus for the fiscal year in which Executive’s Date of Termination occurs; and (z) Executive’s actual bonus payout for the fiscal year in which Executive’s Date of Termination occurs (in the case of each of (x), (y) and (z), not including as bonus any quarterly and annual non-equity bonus payouts amount payable under any non-equity incentivethe Company’s Performance Reward Plan or a similar broad-based compensation plans then plan), multiplied by (B) a fraction, the numerator of which is the number of days in effect the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (provided that any applicable performance measures are achieved365); and , (iii) any unpaid accrued vacation pay and (iv) to the extent permissible under Section 409A of the Code, if Executive is subject to Section 409A of the Code, any other benefits or awards which have been earned or become payable pursuant to the terms of any compensation plan but which have not yet been paid to Executive; plus (2) a lump-sum cash amount equal to (i) _____ times Executive’s highest annual rate of base salary during the 12-month period prior to the Date of Termination, plus (ii) _____ times the greatest of: (A) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs; (B) not less than Executive’s target bonus for the fiscal year in which the Change in Control occurs; or (C) not less than Executive’s target bonus for the fiscal year in which Executive’s Date of Termination occurs (in the case of each of (A), (B) and (C), not including as bonus any amount payable under the Company’s Performance Reward Plan or a similar broad-based plan). Any amount paid pursuant to this Section 3(a) (2) shall be in lieu of any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy of the Company or under any employment agreement or offer letter between the Company and Executive. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of two (2) years following the Date of Termination but in no event after Executive’s attainment of age 65, Executive (and Executive’s dependents if applicable) with the same level of medical, dental, accident, disability, life insurance and any other similar benefits in place as of the Date of Termination upon substantially the same terms and conditions (including contributions required by Executive for such benefits) as existed immediately prior to Executive’s Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted or shall provide Executive with cash payments on an after-tax basis sufficient to permit Executive to purchase coverage providing benefits comparable to the benefits under the Company plans; provided, further, that in any case the provisions of this Section 3(b) shall be effected in a manner that is compliant with the non-discrimination rules applicable to non-grandfathered health plans under the Patient Protection and Affordable Care Act of 2010 and related regulations and guidance promulgated thereunder. Notwithstanding the foregoing, in the event Executive becomes employed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s then current base salary eligibility, but only to the extent that the Company reimburses Executive would have received from for any increased cost and provides any additional benefits necessary to give Executive the Termination benefits provided hereunder. Should the terminated Executive move his residence in order to pursue other business opportunities within two (2) years of the Date through of Termination, the date Company agrees to reimburse such Executive for any reasonable expenses incurred in that is nine months following such Termination Daterelocation (including taxes payable on the reimbursement) which are not reimbursed by another employer. Any amount payable to Executive pursuant to Section 10(b)(iii) Reimbursement shall be subject to deductions and withholdings and shall be paid to Executive include assistance in selling Executive’s home which was customarily provided by the Company to transferred executives prior to the Change in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawControl. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive promptly reimbursed by the Company for up to $4,000 of fees and expenses charged to him by any executive recruiting, counseling or placement firms incurred in seeking new employment following the same manner termination of employment as provided in this Agreement; provided, that such fees and expenses are incurred no later than the end of the second calendar year following the calendar year in which the Date of Termination occurs. The Company shall also pay to Executive, at the same time that incentive bonus payments such reimbursements are made paid, in cash an “additional amount” such that the federal, state and local taxes on the aggregate of such reimbursements and the “additional amount” equal said “additional amount.” The Company will also promptly reimburse Executive for up to current employees of $5,000 per calendar year for the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the calendar year in which the Date of Termination occurs and the next following calendar year of fees and expenses charged to Executive for professional financial and tax planning assistance. If immediately prior to the Date occursof Termination the Company provided Executive with any club memberships, Executive will be entitled to continue such memberships at Executive’s sole expense. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executive within sixty (60) days following the Date of Termination, a cash amount equal to the sum of (1) Executive’s base salary through the Date of Termination, to the extent not theretofore paid, (2) to the extent permissible under Section 409A of the Code, if Executive is subject to Section 409A of the Code, any benefits or awards which have been earned or become payable pursuant to the terms of any compensation plan but which have not yet been paid to Executive, subject and (3) any unpaid accrued vacation pay. The Company may make such additional payments, and provide such additional benefits, to Executive's compliance with Section 10(g) of this Agreement, Executive as the lesser of the total of Executive’s then current base salary Company and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryExecutive may agree in writing.

Appears in 1 contract

Samples: Executive Change in Control Severance Agreement (Harris Corp /De/)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate), subject to Section 10(gwithin five (5) days following the Date of this Agreement and in addition Termination, as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (i) a lump-sum cash amount equal to the sum of (A) the Executive’s then-current 's base salary from the Company and its Subsidiaries through the Date of Termination Date;and any outstanding Bonus or long-term bonus awards for which payment is due and owing at such time, (B) any compensation previously deferred by the Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) (the "Deferred Amount"), plus an additional adjustment payment calculated in accordance with the formula set forth in Exhibit A hereto, (C) any accrued vacation pay, and (D) to the extent not provided under the Company's Bonus plans, a pro-rata portion of the Executive's Projected Bonus Amount for the Year in which the Executive's Date of Termination occurs, in each case to the extent not theretofore paid; plus (ii) pro rata portions a lump-sum cash amount equal to the product of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iiiA) the amount lesser of (1) three (3) and (2) the quotient resulting from dividing the number of full and partial months from the Executive’s then current base salary that 's Date of Termination until the Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions Retirement, by twelve (12) and withholdings (B) the sum of (1) the Executive's highest annual rate of base salary during the 12-month period immediately preceding the Date of Termination and (2) the highest of (x) the Executive's average Bonus (annualized for any partial Years of employment) earned during the 3-Year period immediately preceding the Year in which the Date of Termination occurs (or shorter annualized period if the Executive had not been employed for the full three-Year period), (y) the Executive's Target Bonus Amount for the Year in which the Change in Control occurs and (z) the Executive's Target Bonus Amount for the Year in which the Date of Termination occurs; provided, that any amount paid pursuant to this Section 2(a)(ii) shall offset an equal amount of any severance relating to salary or bonus continuation to be paid to Executive received by the Executive upon termination of employment of the Executive under any severance plan, policy, or arrangement of the Company. (b) If during the Termination Period, the employment of the Executive shall terminate, other than by reason of a Nonqualifying Termination, for a period of three (3) years (or, if lesser, the period ending on the date on which the Executive would be subject to Retirement) commencing on the Date of Termination, the Company shall continue to keep in full force and effect (or otherwise provide) all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent (and on the same after-tax basis), as such policies shall have been in effect immediately prior to the Date of Termination (or, if more favorable to the Executive, immediately prior to the Change in Control), and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same periodic installments in accordance with proportion as such costs were shared immediately prior to the Company's regular payroll practices commencing on the first normal payroll date Date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If during the Termination Period the employment of the Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Executive shall be credited with three (3) years additional age and service credit for purposes of qualifying for any retiree medical benefits programs of the Company, although receipt of such retiree medical benefits shall not commence until the Executive is otherwise eligible under the terms of the retiree medical plan. If the Executive is terminated pursuant to a Nonqualifying Termination and would have been eligible to retire under the terms and conditions of the Company's retiree medical program as of immediately prior to the Executive's Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Change in Control), the Executive's termination of employment is terminated shall be treated as a retirement under the Company's retiree medical program. The retiree medical benefits (and cost) to be provided to the Executive (and the Executives's eligible dependents) by the Company without Cause following a Change in Control as defined in this Agreement shall be no less favorable than the benefits (and before cost) under the end retiree medical program of the Term, or if Company as of immediately prior to the Executive's Date of Termination (or, if more favorable to the Executive, as of immediately prior to the Change in Control), and shall be provided notwithstanding any amendment to, or termination of, the Company's retiree medical program. (d) If during the Termination Period the employment is terminated by of the Executive for Good Reason following shall terminate by reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within thirty (30) days following the Date of Termination, subject a cash amount equal to the sum of (i) the Executive's compliance base salary from the Company and its Subsidiaries through the Date of Termination and any outstanding Bonus or long-term bonus awards for which payment is due and owing at such time, (ii) any compensation previously deferred by the Executive other than pursuant to a tax-qualified plan (together with Section 10(gany interest and earnings thereon), (iii) of this Agreementany accrued vacation pay, and (iv) if the lesser Nonqualifying Termination is other than for Cause, to the extent not provided under the Company's Bonus plans, a pro-rata portion of the total Executive's Earned Bonus Amount for the Year in which the Executive's Date of Executive’s then current base salary Termination occurs, in each case to the extent not theretofore paid. (e) If subsequent to a Change in Control and prorated non-equity incentive bonus payouts as referenced above through the end of the Term Termination Period, the employment of the AgreementExecutive shall be terminated by the Company (other than by reason of a Nonqualifying Termination), the Company shall pay the Executive within five (5) days following his Date of Termination a lump sum cash payment equal to the sum of (i) the Executive's highest annual rate of base salary during the 12-month period immediately preceding the Date of Termination and (ii) the higher of (A) the Executive's average Bonus (annualized for any partial years of employment) earned during the 3-year period immediately preceding the year in which the Date of Termination occurs and (B) the Executive's Target Bonus Amount for the year in which the Date of Termination occurs; provided, that any amount paid pursuant to clauses (i) and (ii) of this Section 2(e) shall offset an equal amount of any severance relating to salary or nine months bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (f) If subsequent to a Change in Control and the end of the Termination Period, the employment of the Executive shall be terminated by the Company, the Company shall pay the Executive within five (5) days following his Date of Termination a lump sum cash payment equal to (i) the Executive’s current 's base salarysalary from the Company and its Subsidiaries through the Date of Termination and any outstanding Bonus or long-term bonus awards for which payment is due and owing at such time, (ii) any accrued vacation pay, and (iii) if the termination is other than for Cause, to the extent not provided under the Company's Bonus plans, a pro-rata portion of the Executive's Earned Bonus Amount for the year in which the Executive's Date of Termination occurs, in each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Change in Control Severance Agreement (Parker Hannifin Corp)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Employee shall terminate, other than by reason ofof a Nonqualifying Termination, then ServiceMaster shall pay to the Employee (or the Employee's beneficiary or estate) within 30 days after the Date of Termination, as compensation for services rendered to ServiceMaster and its affiliated companies: (1) a lump sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 5) equal to the sum of (i) Executivethe Employee's abandonment full annual base salary from ServiceMaster and its affiliated companies through the Date of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated Termination, to the Company); extent not theretofore paid, (ii) termination of Executivethe Employee's employment by annual bonus (APC) in an amount equal to the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration target bonus of the Term; Employee (without regard to any amounts that would otherwise be deferred) in respect of the Company shall pay to Executive his fiscal year of ServiceMaster in which the Change in Control occurs (or her then-current base salary if higher, the target APC bonus in respect of the fiscal year in which the Date of Termination occurs), multiplied by a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication the denominator of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below365 or 366, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)applicable, then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the Employee's payout under ServiceMaster's Long-Term Performance Award Plan (LTPA) in an amount of Executive’s then current base salary that Executive would have received from equal to the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date target payout of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable Employee (without regard to Executive pursuant to Section 10(b)(iiany amounts that would otherwise be deferred) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees respect of the Companyfiscal year of ServiceMaster in which the Change in Control occurs (or, but no earlier than if higher, the first normal payroll date target LTPA payout in respect of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the fiscal year in which the Date of Termination occurs), multiplied by a fraction, the numerator of which is the number of days in the fiscal year in which the Date occurs.of Termination occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, (iv) the excess, if any, of the Employee's bank balance under the LTPA on the Date of Termination over any administrative credit in such bank balance on the Date of Termination, and (v) any compensation previously deferred by the Employee (together with any interest and earnings thereon) under the ServiceMaster Deferred Compensation Plan or any successor plan and any accrued vacation pay, in each case to the extent not theretofore paid; plus (c2) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, lump sum cash amount (subject to Executive's compliance with any applicable payroll or other taxes required to be withheld pursuant to Section 10(g5) equal to the sum of this Agreement(i) [one (1), the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.two

Appears in 1 contract

Samples: Change in Control Severance Agreement (Servicemaster Co)

Payments Upon Termination of Employment. (aIn the --------------------------------------- event of any termination by the Executive pursuant to Paragraph 7(c) If above, or in the event the Executive's employment with the Company under this Agreement is terminated by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (any reason other than one of those specified in Paragraphs 7(a) or 7(b) above, the Company shall, as defined below); orliquidated damages or severance pay, or both, promptly pay to the Executive and provide the Executive and the dependents, beneficiaries and estate of the Executive as follows: (iiia) termination of Executive's employment by the Company without Cause following expiration of the Term; the The Company shall pay the Executive in equal monthly installments over the unexpired portion of the term of employment provided for in Paragraph 3(a) above or, at the Company's option, in a lump sum calculated without any discount, a cash amount equal to the excess of (i) the salary provided in Paragraph 4(a) above, including the increases therein provided, for the unexpired portion of the term of employment provided for in Paragraph 3(a) above (commencing with the month in which termination shall have occurred) less the amounts, if any, the Executive his would have paid in cash in respect of employee benefits provided for in Paragraph 4(c)(v) above if the Executive were still employed, over (ii) the amounts, if any, paid to the Executive pursuant to any severance or her then-current base salary through termination pay program or arrangement of the Termination Date and Company or any and all other benefits to which of its subsidiaries; provided, however, if the Executive may s termination occurs after a Change of Control, such payment shall be entitled under in the form of a lump sum, calculated without any applicable Company policy, plan or procedure (without duplication of benefits)discount. (b) Except The Company shall also pay the Executive in a lump sum a cash amount equal to the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated average incentive award earned by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date provisions of the Company following s annual incentive plan over the expiration of all applicable rescission periods provided by law. Any amount payable to two calendar years immediately preceding the Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurss termination. (c) If Executive's employment The Company shall also pay the Executive a lump sum cash amount equal to the sum of (i) and (ii), where (i) is terminated the present value of the aggregate contributions or payments, if any, that would have been made by the Company without Cause following a Change or any of its subsidiaries under the Thrift and Savings Program and Employee Stock Ownership Plan described in Control as defined in this Agreement Paragraph 4(c)(ii) and before the end (iii) above or any successor program of the TermCompany in effect on the date on which termination shall have occurred, or if the Executive's employment is terminated by Executive had continued to be employed, and to participate on a fully vested basis in the Thrift and Savings Program and Employee Stock Ownership Plan or such successor programs to the same extent as the Executive participated for Good Reason following a Change in Control and before -12- the end last month during which the Executive was permitted to participate, during the unexpired portion of the Termterm of employment provided for in Paragraph 3(a) above at an annual rate of compensation equal to that used to calculate the payments provided by Paragraph 8(a) above; and (ii) is the value, then if any, of that portion of the Executive s accounts under the Thrift and Savings Program and Employee Stock Ownership Plan or such successor programs that would not have been forfeited upon the Executive s termination of employment if the Executive s service with Industrial and Environmental Analysts, Inc. had been taken into account for vesting purposes under said Thrift and Savings Program, Employee Stock Ownership Plan or successor plans. (d) For purposes of calculating the lump sum cash payments provided by Paragraph 8 (c) above, present value shall be determined by using a discount factor equal to one percentage point below the prime rate as published in The Wall Street Journal as of the date on which termination shall have occurred. (e) For the unexpired portion of the term of the Executive s employment provided for in Paragraph 3(a) above (commencing with the month in which termination shall have occurred), the Executive shall continue to be entitled to all employee benefits provided for in Paragraph 4(c)(v) above as may be in effect on the date of termination, as if the Executive were still employed during such period under this Agreement, with benefits based upon the compensation used to calculate the payments provided by Paragraph 8(a) above, and if and to the extent that such benefits shall not be payable or provided under any such plan, the Company shall pay or provide such benefits on an individual basis. The medical, dental, health and welfare benefits provided for in Paragraph 4(c)(v) above, in accordance with this Paragraph 8(e) shall be secondary to Executiveany comparable benefits provided by another employer provided that an appropriate refund is made of any reduction in the amount paid pursuant to Paragraph 8(a)(i) which had assumed that such benefits would be primary. (f) All stock options granted to the Executive pursuant to the Company's stock option plan shall become immediately vested and exercisable, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryextent permitted by said plan.

Appears in 1 contract

Samples: Employment Agreement (Aquarion Co)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions a bonus in an amount at least equal to the average annualized incentive compensation awards paid or payable pursuant to the Kansas City Power & Light Company incentive compensation plan, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid deferral, to Executive by the Company in and its affiliated companies during the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date five fiscal years of the Company following (or if Executive shall have performed services for the expiration Company and its affiliated companies for four fiscal years or less, the years during which Executive performed services) immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of all applicable rescission periods provided by law. Any which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, to the extent not theretofore paid, (iii) any amount payable credited to Executive Executive's CAP Excess Benefits Account pursuant to Section 10(b)(iithe Capital Accumulation Plan Excess Benefit Agreement, dated effective as of January 1, 1989, between Executive and the Company, and any other compensation previously deferred by Executive (together with any interest and earnings thereon), in each case to the extent not theretofore paid, and (iv) shall be subject any accrued unpaid vacation pay; (2) a lump-sum cash amount in an amount equal to deductions (i) ___ (__) times Executive's highest annual base salary from the Company and withholdings and shall be its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) ___ (__) times Executive's average annualized incentive compensation awards, paid or payable, including by reason of any deferral, to Executive by the Company in and its affiliated companies during the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date five fiscal years of the Company following (or if Executive shall have performed services for the expiration of all applicable rescission periods provided by law Company and no later than March 15th of its affiliated companies for four fiscal years or less, the year following years during which Executive performed services) immediately preceding the fiscal year in which the Change in Control occurs; PROVIDED, HOWEVER, that in the event there are fewer than ___ whole months remaining from the Date of Termination to the date of Executive's 70th birthday, the amount calculated in accordance with this Section 3(a)(II) shall be reduced by multiplying such amount by a fraction the numerator of which is the number of months, including a partial month (with a partial month being expressed as a fraction the numerator of which is the number of days remaining in such month and the denominator of which is the number of days in such month), so remaining and the denominator of which is ___ months; PROVIDED FURTHER, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance pay to be received by Executive upon termination of employment of Executive under any severance plan, policy or arrangement of the Company. (1) In addition to the payments to be made pursuant to paragraph (a) of this Section 3, the Company shall pay to Executive within 30 days following the Date occursof Termination a lump-sum cash amount equal to the excess of (a) the actuarial equivalent value of the monthly accrued benefits payable to Executive at age 65 under the Kansas City Power & Light Company Management Pension Plan (the "Pension Plan") as in effect on the date of this Agreement and the benefits provided under the Supplemental Executive Retirement and Deferred Compensation Plan in respect of the Pension Plan as in effect on the date of this Agreement, assuming that benefits have accrued thereunder and Executive is entitled to such benefits, each such benefit shall be computed as if Executive had ___ (__) additional Years of Credited Service under the Pension Plan and were fully vested in such hypothetical benefits, over (b) the actuarial equivalent value of Executive's vested accrued benefits under the Pension Plan and benefits payable under the Supplemental Retirement Agreement. Such lump- sum cash amount shall be computed using the same actuarial methods and assumptions then in use for purposes of computing benefits under the Pension Plan, except that the computation shall be made without actuarial reduction for early retirement and provided that the interest rate used in such computation shall be the interest rate used on the Date of Termination by the Pension Benefit Guaranty Corporation for purposes of determining the present value of a lump sum distribution pursuant to a plan termination. (2) In addition to the payments to be made pursuant to paragraph (a) of this Section 3, if on the Date of Termination Executive shall not be fully vested in the matching employer contributions made on Executive's behalf under the Kansas City Power & Light Company Cash or Deferred Arrangement, the Company shall pay to Executive within 30 days following the Date of Termination a lump sum cash amount equal to the value of the unvested portion of such matching employer contributions; PROVIDED, HOWEVER, that if any payment pursuant to this Section 3(b)(2) may or would result in such payment being deemed a transaction which is subject to Section 16(b) of the Exchange Act, the Company shall make such payment so as to meet the conditions for an exemption from such Section 16(b) as set forth in the rules (and interpretive and no-action letters relating thereto) under Section 16. The value of any such unvested matching employer contributions shall be determined as of the Date of Termination; provided that if the common stock of the Company is traded on the New York Stock Exchange on the Date of Termination, the value of a share of common stock of the Company shall be the closing price on the New York Stock Exchange on the Date of Termination or, if such date is not a trading day, on the immediately preceding trading day. (3) For a period of ___ (__) years commencing on the Date of Termination, the Company shall continue to keep in full force and effect all medical, accident, disability and life insurance plans with respect to Executive and Executive's dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such plans shall have been in effect immediately prior to the Date of Termination. Notwithstanding the foregoing sentence, if any of the medical, accident, disability or life insurance plans then in effect generally with respect to other peer executives of the Company and its affiliated companies would be more favorable to Executive, such plan coverage shall be substituted for the analogous plan coverage provided to Executive immediately prior to the Date of Termination, and the Company and Executive shall share the costs of such plan coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. The obligation of the Company to continue coverage of Executive and Executive's dependents under such plans shall cease at such time as Executive and Executive's dependents obtain comparable coverage under another plan, including a plan maintained by a new employer. Execution of this Agreement by Executive shall not be considered a waiver of any rights or entitlements Executive and Executive's dependents may have under applicable law to continuation of coverage under the group health plan maintained by the Company or its affiliated companies. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance full annual base salary from the Company through the Date of Termination, to the extent not theretofore paid, and (2) any compensation previously deferred by Executive (together with Section 10(gany interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid. (d) For the purposes of this Agreement, the lesser Executive's employment shall be deemed to have been terminated within the Termination Period other than by reason of a Nonqualifying Termination if: (1) the Executive's employment is terminated without Cause prior to a Change in Control (or, if later, prior to the consummation of the total transaction the approval of Executive’s then current base salary which by the Company's stockholders constitutes a Change in Control under Section 1(d)(3) or (4) and prorated non-equity incentive bonus payouts as referenced above through such termination was at the end request or direction of a Person who has entered into an agreement with the Company the consummation of which or the approval of which by the Company's stockholders would constitute a Change in Control; (2) the Executive terminates his employment with Good Reason prior to a Change of Control (or, if later, prior to the consummation of the Term transaction the approval of which by the Company's stockholders constitutes a Change in Control under Section 1(d)(3) or (4)) and the circumstance or event which constitutes Good Reason occurs at the request or direction of such Person; or (3) the Executive's employment is terminated without Cause prior to a Change in Control (or, if later, prior to the consummation of the Agreement, transaction the approval of which by the Company's stockholders constitutes a Change in Control under Section 1(d)(3) or nine months (4)) and such termination is otherwise in connection with or in anticipation of Executive’s current base salarya Change in Control which actually occurs.

Appears in 1 contract

Samples: Severance Agreement (Kansas City Power & Light Co)

Payments Upon Termination of Employment. (a) If Executive's employment with during the Company is terminated by reason of: Termination Period (i) Executive's abandonment the employment of Executive’s employment or Executive's resignation for any the Executive shall terminate, other than by reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); of a Nonqualifying Termination, and (ii) termination of the Executive (or the Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his executor or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except legal representative in the case of a Change in Control, which is governed by Section 10(c) below, if the Executive's employment with death or disability following such termination) executes a general release in the Company is terminated by form of Exhibit A hereto within five days following the Company pursuant to Section 9(a)(i) effective prior to the expiration Executive's Date of the Term for any reason other than for Cause (as defined below)Termination and has not revoked such release, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) the Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions the Executive's target bonus for the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of any quarterly which is the number of days in the fiscal year in which the Change in Control occurs through the Date of Termination and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and the denominator of which is 365 or 366, as applicable, to the extent not theretofore paid and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable (subject to Executive any applicable payroll or other taxes required to be withheld pursuant to Section 10(b)(iii5) in an amount equal to (i)150% of the Executive's highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii)150% of the Executive's target bonus for the fiscal year in which the Change in Control occurs, PROVIDED, HOWEVER, that any amount paid pursuant to this Section 3(a)(2) shall be subject paid in lieu of any other amount of severance relating to deductions and withholdings and shall salary or bonus continuation to be paid to Executive received by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date Executive upon termination of employment of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees under any employment agreement or severance plan, policy or arrangement of the Company, but no earlier than Aerial Operating Company, Inc., Telephone and Data Systems, Inc. or any other Affiliate (as determined immediately prior to a Change in Control). (1) In addition to the first normal payroll date payments to be made pursuant to Section 3(a) for a period of 18 months commencing on the Date of Termination, the Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination as provided generally with respect to other peer executives of the Company and its affiliated companies, and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. (2) In addition to the payments to be made pursuant to Section 3(a), the Executive shall be entitled to outplacement services to be provided by a firm selected by the Company, provided that such outplacement services are commenced within 30 days following the expiration Date of all applicable rescission periods provided by law and no later than March 15th Termination. Payments in the aggregate amount not to exceed $12,000 shall be made directly to such outplacement firm upon submission of proper documentation to the year following Company. If the year Executive elects not to use such outplacement services, the Executive will not be entitled to cash compensation in which the Termination Date occurslieu thereof. (c) If Executive's during the Termination Period the employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Aerial Communications Inc)

Payments Upon Termination of Employment. (a) If during the Termination Period the employment of Executive shall terminate pursuant to a Qualifying Termination, then the Company shall provide to Executive: (1) Within ten (10) days following the Date of Termination a lump-sum cash amount equal to the sum of (A) Executive's employment with base salary through the Company is terminated by reason of: Date of Termination and any bonus amounts which have become payable, to the extent not theretofore paid or deferred, (B) a pro rata portion of Executive's annual bonus for the fiscal year in which Executive's Date of Termination occurs in an amount at least equal to (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); Bonus Amount multiplied by (ii) termination a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365), and reduced by (iii) any amounts paid from the Company's annual incentive plan for the fiscal year in which Executive's Date of Termination occurs; plus (2) Within ten (10) days following the Date of Termination, a lump-sum cash amount equal to (A) two (2) times Executive's highest annual rate of base salary during the 12-month period immediately prior to Executive's Date of Termination, plus (B) two (2) times Executive's Bonus Amount (b) If during the Termination Period the employment of Executive shall terminate pursuant to a Qualifying Termination, the company shall continue to provide, for a period of two (2) years following Executive's Date of Termination, Executive (and Executive's dependents, if applicable) with the same level of medical, dental, accident, disability and life insurance benefits upon substantially the same terms and conditions (including contributions required by Executive for such benefits) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided that, if Executive cannot continue to participate in the company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive's employment by eligibility, but only to the extent that the Company reimburses Executive for Cause (as defined below); orany increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. (iiic) termination If during the Termination Period the employment of Executive's employment by Executive shall terminate pursuant to a Qualifying Termination, the Company without Cause following expiration of the Term; the Company company shall pay to Executive Executive, within 30 days following his or her then-current base salary through Date of Termination, a lump sum payment in an amount equal to the Termination Date and any and all other sum of: (1) The excess, if any, of (A) the present value of the benefits to which Executive may would be entitled under Company's pension and retirement plans (qualified and nonqualified), if Executive had continued in the employ of the company for an additional two (2) years following his Date of Termination earning during such two-year period the rate of base salary and bonus in effect as of his date of Termination, over (B) the present value of the benefit to which Executive is actually entitled under such pension and retirement plans as of his Date of Termination; (2) The present value of the Company contributions (including any applicable allocations of securities of the Company) that would have been made under all Company policysavings programs (qualified and nonqualifed), if Executive had continued in the employ of the Company for an additional two (2) years following his Date of Termination earning during such two-year period the rate of base salary and bonus in effect as of his Date of Termination, assuming that the Company would have made the maximum contributions permitted under such savings programs, and assuming, for purposes of determining the amount of any Company matching contributions, that Executive would have contributed that amount necessary to receive the maximum matching contributions available under such savings programs); and (3) If contributions to the Company's employee stock ownership plan (the "ESOP") will continue after the Date of Termination, the value of the allocations that would have been made to Executive under the ESOP, if Executive had continued in the employ of the Company for an additional two (2) years following his Date of Termination, determined by multiplying (A) two (2) times the number of shares of stock of the Company (or, if applicable, the Surviving Person or procedure the Parent Corporation, as such terms are defined below) allocated to the Executive's account (i) under the ESOP for the last full calendar year prior to the Date of Termination by (B) the fair market value of one share of such stock on the Date of Termination. For purposes of the preceding sentence, "present value" shall be determined as of the Date of Termination and shall be calculated based upon a discount rate of the base rate referred to in Section 7 and without duplication of benefits)reduction for mortality. (bd) Except in If during the case Termination Period the employment of Executive shall terminate other than by reason of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Qualifying Termination, then the Company shall pay to Executiveexecutive within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition a lump-sum cash amount equal to the consideration described in Section 4(b) above, the following amounts: sum of (i1) Executive’s then-current 's base salary through the Date of Termination Date; and any bonus amounts which have become payable, to the extent not theretofore paid or deferred and (ii2) pro rata portions of any quarterly accrued vacation pay, in each case to the extent not theretofore paid. The Company may make such additional payments, and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following provide such Termination Date. Any amount payable additional benefits, to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by as the Company and Executive may agree in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurswriting. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary.

Appears in 1 contract

Samples: Change in Control Severance Agreement (Sterling Bancorp)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump sum cash amount equal to the sum of (i) Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions Executive's annual bonus in an amount at least equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such Change in Control occurs and (y) the average of the Executive's annual bonus (annualized for any fiscal year consisting of less than 12 full months) with respect to which bonus paid or payable, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid deferral, to Executive by the Company and its affiliated companies in respect of the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date two fiscal years of the Company following (or such portion thereof during which Executive performed services for the expiration Company if Executive shall have been employed by the Company for less than such two fiscal year period) immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of all which is the number of days in the fiscal year in which the Change in Control occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable rescission periods provided by law. Any amount payable payroll or other taxes required to Executive be withheld pursuant to Section 10(b)(ii4) shall be subject in an amount equal to deductions (i) 2.5 times (1.5 times if a Change in Control has not occurred) Executive's highest annual base salary from the Company and withholdings and shall be its affiliated companies in effect during the 12-month period prior to the Date of Termination plus (ii) 2.5 times (1.5 times if a Change in Control has not occurred) Executive's highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which Executive has been employed by the Company for less than 12 full months), bonus paid or payable, including by reason of any deferral, to Executive by the Company and its affiliated companies in the same manner and at the same time that incentive bonus payments are made to current employees respect of the Company, but no earlier than the first normal payroll date five fiscal years of the Company following (or such portion thereof during which Executive performed services for the expiration of all applicable rescission periods provided Company if Executive shall have been employed by law and no later the Company for less than March 15th of such five fiscal year period) immediately preceding the year following the fiscal year in which the Change in Control occurs, provided, however, that in the event there are fewer than 30 whole months (18 whole months if a Change in Control has not occurred) remaining from the Date of Termination to the date of Executive's 70th birthday, the amount calculated in accordance with this Section 3(a)(2) shall be reduced by multiplying such amount by a fraction the numerator of which is the number of months, including a partial month (with a partial month being expressed as a fraction the numerator of which is the number of days remaining in such month and the denominator of which is the number of days in such month), so remaining and the denominator of which is 30 (18 if a Change in Control has not occurred); provided further, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan, policy or arrangement of the Company. (b) For a period of 2.5 years (18 months if a Change in Control has not occurred) commencing on the Date occursof Termination, the Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination or, if more favorable to Executive, as provided generally with respect to other peer executives of the Company and its affiliated companies, and the Company and Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the Agreement, or nine months of Executive’s current base salaryextent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Whitehall Jewellers Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) the Executive’s then-current 's base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions the higher of the Executive's bonus paid or payable, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) deferral, to the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company or its affiliated companies in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date respect of the Company following fiscal year immediately preceding the expiration fiscal year in which the Change in Control occurs, or the Executive's average annual bonus paid or payable, including by reason of all applicable rescission periods provided by law. Any amount payable any deferral, to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to the Executive by the Company and its affiliated companies in the same manner and at the same time that incentive bonus payments are made to current employees respect of the Company, but no earlier than the first normal payroll date three fiscal years of the Company following immediately preceding the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the fiscal year in which the Change in Control occurs, in either case multiplied by a fraction, the numerator of which is the number of days in the fiscal year in which the Change in Control occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 5) in an amount equal to (i) three (3) times the Executive's highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) the higher of three (3) times the Executive's bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the fiscal year immediately preceding the fiscal year in which the Change in Control occurs, or three (3) times the Executive's average annual bonus paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the three fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs; PROVIDED, HOWEVER, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (1) In addition to the payments to be made pursuant to paragraph (a) of this Section 3, if on the Date of Termination the Executive shall not be fully vested in his accrued benefits under the Pension Plan, the Excess Benefit Plan or the Profit Sharing Plan, the Company shall pay to the Executive within 30 days following the Date of Termination a lump sum cash amount equal to his unvested accrued benefits under the Pension Plan, the Excess Benefit Plan and the Profit Sharing Plan as of such date. (2) In addition to the payments to be made pursuant to paragraph (a) of this Section 3, if on the Date of Termination any award granted to the Executive under the CAP Plan shall not be fully vested, the Company shall pay to the Executive within 30 days following the Date of Termination a lump sum cash amount equal to the value of the unvested portion of such award, assuming that all conditions to the payment of the maximum amount under such award shall have been satisfied. (3) If during the Termination Period the employment of the Executive shall terminate, other than by reason of a Nonqualifying Termination, for a period of three years commencing on the Date of Termination, the Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination or, if more favorable to the Executive, as provided generally with respect to other peer executives of the Company and its affiliated companies, and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. Benefits otherwise receivable under this Section 3(b)(3) shall be reduced to the extent comparable benefits are actually received by or made available to the Executive without cost during the thirty-six (36) month period following the Date of Termination (and any such benefits actually received by the Executive shall be reported to the Company by the Executive). (c) If Executive's during the Termination Period the employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Change in Control Agreement (Tootsie Roll Industries Inc)

Payments Upon Termination of Employment. (a) a If Executive's ’s employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; reason, the Company shall pay or provide to Executive his or her then-current base salary (i) the amount of any earned but unpaid Base Salary through the Termination Date and Date; (ii) the amount of any and all other earned but unpaid benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits) through the Termination Date, and (iii) reimbursement of Executive’s expenses incurred through the Termination Date in accordance with Section 4(d) (collectively, the “Accrued Obligations”). (b) . b Except in the case of a Change in of Control, which is governed by Section 10(c) below, if Executive's ’s employment with the Company is terminated by the Company pursuant to Section 9(a)(i9(a) effective prior to on the date of or before the date of expiration of the Term for any reason other than for Cause (as defined below)or is terminated by Executive for Good Reason, then the Company shall pay or provide to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) aboveAgreement, the following amounts: following: i the Accrued Obligations; ii (iA) Executive’s thenif such termination is on or prior to July 31, 2026 (the “Second Anniversary Date”), an amount equal to one and one-current base salary through half (1.5) times the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount sum of Executive’s then current base salary that Executive would have received from Base Salary and Executive’s Target Annual Bonus, payable in equal installments for the Termination Date through the date that is nine eighteen (18) months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii; or (B) shall be if such termination is after the Second Anniversary Date, continuation of Executive’s Base Salary paid in equal monthly installments for the eighteen (18) months following such Termination Date; iii any earned and unpaid Annual Bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs; iv a pro-rata portion of Executive’s Annual Bonus for the fiscal year in which the Termination Date occurs, subject to deductions the achievement of applicable performance measures, and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments as bonuses are made paid to current employees of the Companyother executives generally, but in no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no event later than March 15th of the year 15 following the year in which the Termination Date occurs. ; v in the event that Executive timely elects medical and dental coverage under the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 (c) If Executive's employment is terminated by “COBRA”), the Company without Cause shall reimburse Executive for Executive’s cost of COBRA coverage for eighteen (18) months following the Termination Date; Exhibit 10.1 vi the Company shall make outplacement services available to Executive, at a Change total cost not to exceed $12,000, for a period of time not to exceed twelve (12) months following the Termination Date; vii Executive shall not be subject to the repayment obligations set forth in Control Section 4(f) (and the applicable Relocation Agreement); and viii subject to more favorable treatment in an applicable award agreement, to the extent that Executive has any equity awards outstanding as defined of the Termination Date, a portion of such outstanding unvested equity awards shall become vested as follows: A. with respect to any equity awards that are purely time-vesting awards, Executive shall be entitled to vest in a number of shares of Company common stock subject to such awards as required to ensure Executive has vested in a number of shares that are at least equal to the number of shares of Company common stock subject to such awards multiplied by a fraction, the numerator of which is the number of Executive’s completed months of service after the grant date of such award through the Termination Date and the denominator of which is the total number of months in the regular vesting schedule of such award, taking into consideration for this Agreement calculation any shares of Company common stock that already vested in accordance with their regular vesting schedule, and B. with respect to equity awards that are at least partly performance-vesting awards, Executive shall be entitled to vest in a number of shares of Company common stock subject to such awards equal to the number of shares of Company common stock subject to such awards that would have vested based on actual levels of achievement of performance metrics over the applicable performance period multiplied by a fraction, the numerator of which is the number of Executive’s completed months of service after the grant date of such award through the Termination Date and before the denominator of which is the number of months of service that were otherwise required over the applicable performance period; any shares of Company common stock subject to performance-vesting awards that vest pursuant to this Section 10(b)(viii) shall be delivered to Executive not later than sixty (60) days following the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salaryapplicable performance period.

Appears in 1 contract

Samples: Employment Agreement (Papa Johns International Inc)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s his employment or Executive's resignation for any reason (whether including by reason of death or not such disability) other than Executive's voluntary resignation is set forth in writing or otherwise communicated from the Company at any time prior to the CompanyMay 22, 2005 with Good Reason (as defined below); (ii) termination of Executive's employment by the Company for Cause (as defined below); (iii) expiration of the Term; or (iiiiv) termination of Executive's employment by the Company without Cause following expiration of the Term; , the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)) or Executive voluntarily resigns prior to May 22, 2005 with Good Reason, then the Company shall pay to Executive, subject to Section 10(g6(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary and benefits through the Termination Date; (ii) pro rata portions an amount equal to 1/12th of any quarterly Executive's then-current annual base salary, payable in six equal installments over a six-month period pursuant to the Company's regular payroll practices and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved)procedures as well as a continuation of health care benefits during such period; and (iii) if Executive has not been employed within six months of the Termination Date, an amount equal to 1/12 of Executive’s then 's then-current annual base salary salary, payable for each month after the initial six-month period set forth in Section 7(b)(ii) for up to an additional six months (and Executive shall be entitled to a continuation of health care benefits during the period that he receives such additional monthly payments) if Executive would have received from is still actively looking for employment and Executive has not been employed at any time after the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iiiSections 7(b)(ii) and 7(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic equal installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurs. (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g) For purposes of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, or nine months of Executive’s current base salary."Cause" shall mean:

Appears in 1 contract

Samples: Employment Agreement (Displaytech Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive, within 30 days following the Date of Termination, as compensation for services rendered to the Company: (1) a cash amount equal to the sum of (i) the Executive's full annual base salary from the Company and its affiliated companies through the Date of Termination and any short-term incentive compensation earned by the Executive for any performance period ending prior to the Date of Termination, in each case to the extent not theretofore paid, (ii) an amount equal to the Executive's annual base salary multiplied by the Executive's Target Percentage applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control), multiplied by 50%, multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable six-month performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is 180 (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the target short-term incentive compensation afforded by such different short-term incentive compensation opportunity for the applicable performance period in which the Date of Termination occurs (but not less than the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control), multiplied by a fraction, the numerator of which is the number of days elapsed in the applicable performance period in which the Date of Termination occurs through the Date of Termination and the denominator of which is the total number of days in such applicable performance period) and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(g5) in an amount equal to (i) three (3) times the Executive's highest annual base salary from the Company and its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) an amount equal to the product of three (3) times such annual base salary multiplied by the Executive's Target Percentage as applicable immediately prior to the Date of Termination (or, if greater, immediately prior to the Change in Control) (or if a different short-term incentive compensation opportunity is then in effect, an amount equal to the product of [ ] ( )] times the annual target short-term incentive compensation afforded by such different short-term incentive compensation opportunity, but not less than [ ] ( )] times the amount that would have been afforded by the Target Percentage as in effect immediately prior to such Change in Control); PROVIDED, HOWEVER, that any amount paid pursuant to this Agreement Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary, short-term incentive compensation or other bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. Notwithstanding the foregoing, if the Company is obligated by law or contract to pay severance pay, notice pay or other similar benefits, or if the Company is obligated by law or by contract to provide advance notice of separation ("Notice Period"), then the payments made pursuant to this Section 3(a)(2) shall be reduced by the amount of any such severance, notice pay or other similar benefits, as applicable, and in by the amount of any severance pay, notice pay or other similar benefits received during any Notice Period. (b) In addition to the consideration described in payments to be made pursuant to Section 4(b) above3(a), the following amounts: Company shall pay to the Executive at the time the payments pursuant to Section 3(a) shall be made, a lump-sum cash amount equal to the actuarial equivalent of the excess of (i) the Executive’s then-current base salary through 's accrued benefits under any qualified defined benefit pension plan and any nonqualified supplemental defined benefit pension plan of the Company in which the Executive is a participant, calculated by increasing the Executive's age and service credit under such plans as of the Date of Termination Date; by three (3) year(s) over (ii) pro rata portions the Executive's accrued benefits under such plans as of any quarterly the Date of Termination. Such lump sum cash amount shall be computed using the same actuarial methods and annual non-equity bonus payouts under any non-equity incentive-based compensation plans assumptions then in effect (use for purposes of computing benefits under such plans, provided that any applicable performance measures are achievedthe interest rate used in making such computation shall not be greater than the interest rate permitted under Section 417(e) of the Internal Revenue Code of 1986, as amended (the "Code"); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing , on the first normal payroll date Date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's employment is terminated by For a period of three (3) years commencing on the Date of Termination, the Company without Cause following a Change shall continue to keep in Control full force and effect all policies of medical and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as defined such policies shall have been in this Agreement and before effect immediately prior to the end Date of Termination or as provided generally with respect to other peer executives of the TermCompany and its affiliated companies, and the Company and the Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination; PROVIDED, HOWEVER, that the medical and life insurance coverage provided pursuant to this Section 3(c) shall be in lieu of any other medical and life insurance coverage to which the Executive is entitled under any plan, policy or if arrangement of the Company or any law obligating the Company to provide such insurance coverage upon termination of employment of the Executive's . (d) If during the Termination Period the employment is terminated by of the Executive for Good Reason following shall terminate by reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to the Executive, subject within 30 days following the Date of Termination, a cash amount equal to the sum of: (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Avaya Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump-sum cash amount equal to the sum of (i) Executive’s then-current 's base salary through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) a pro rata portions portion of any quarterly and Executive's annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect an amount at least equal to (provided that any applicable performance measures are achieved); and (iiiA) the amount greater of (1) Executive’s then current base salary that Executive would have received from 's target bonus for the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the fiscal year in which the Change in Control occurs and (2) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs, multiplied by (B) a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is three hundred sixty-five (365), and (iii) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid. (2) a lump-sum cash amount equal to (i)one and one half (1 1/2) times Executive's highest annual rate of base salary during the 12-month period prior to the Date of Termination, plus (ii) one and one half (1 1/2) times the greatest of (A) the highest bonus earned by Executive in respect of the three (3) fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs or (B) Executive's target bonus for the fiscal year in which the Change in Control occurs or (C) Executive's target bonus for the fiscal year in which Executive's Date of Termination occurs. Any amount paid pursuant to this Section 3(a)(2) shall reduce any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan or policy or employment agreement of the Company. (b) If during the Termination Period the employment of Executive shall terminate, other than by reason of a Nonqualifying Termination, the Company shall continue to provide, for a period of one and one half (1 1/2) years following the Date of Termination, Executive (and Executive's dependents if applicable) with the same level of medical, dental, accident, disability and life insurance benefits upon substantially the same terms and conditions (including cost of coverage to Executive) as existed immediately prior to Executive's Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive's eligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within thirty (30) days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the Agreementextent not theretofore paid. The Company may make such additional payments, or nine months of Executive’s current base salaryand provide such additional benefits, to Executive as the Company and Executive may agree in writing.

Appears in 1 contract

Samples: Severance Agreement (Commonwealth Industries Inc/De/)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s his employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; or the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved); andwhich the Termination Date occurs; (iii) the amount of Executive’s his then current base salary that Executive would have received from the Termination Date through the date that is nine months earlier of (A) 180 days following such Termination Date and (B) the Third Anniversary Date if his employment with the Company had not been terminated; and (iv) 50% of the aggregate quarterly Incentive Bonus earned by Executive for the last four full fiscal quarters immediately preceding the fiscal quarter in which the Termination Date occurs, provided, however, if the Termination Date occurs during the fiscal quarter ending on the Third Anniversary Date, the amount payable pursuant to this Section 10(b)(iv) shall be reduced by a fraction, the numerator of which is the number of days during such fiscal quarter that Executive was employed by the Company and the denominator of which is the number of days in such fiscal quarter. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of law. Any amount payable to Executive pursuant to Section 10(b)(iv) shall be paid to Executive by the year following Company on the year in which the Termination Date occurssame date as any payment would be made pursuant to Section 10(b)(ii) if Executive were entitled to such payment. (c) If Executive's employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the Term, or if the Term by reason of Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Termdeath or Disability, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then his then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 1 contract

Samples: Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to Executive (or Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a lump sum cash amount equal to the sum of (i) Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions Executive's annual bonus in an amount at least equal to the higher of (x) one-half of the maximum bonus the Executive could earn during the fiscal year during which such Change in Control occurs and (y) the average of the Executive's annual bonus (annualized for any fiscal year consisting of less than 12 full months) with respect to which bonus paid or payable, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid deferral, to Executive by the Company and its affiliated companies in respect of the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date two fiscal years of the Company following (or such portion thereof during which Executive performed services for the expiration Company if Executive shall have been employed by the Company for less than such two fiscal year period) immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of all which is the number of days in the fiscal year in which the Change in Control occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable rescission periods provided by law. Any amount payable payroll or other taxes required to Executive be withheld pursuant to Section 10(b)(ii4) shall be subject in an amount equal to deductions (i) 2.5 times (1.5 times if a Change in Control has not occurred) Executive's highest annual base salary from the Company and withholdings and shall be its affiliated companies in effect during the 12-month period prior to the Date of Termination plus (ii) 2.5 times ([1.5 times if a Change in Control has not occurred) Executive's highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which Executive has been employed by the Company for less than 12 full months), bonus paid or payable, including by reason of any deferral, to Executive by the Company and its affiliated companies in the same manner and at the same time that incentive bonus payments are made to current employees respect of the Company, but no earlier than the first normal payroll date five fiscal years of the Company following (or such portion thereof during which Executive performed services for the expiration of all applicable rescission periods provided Company if Executive shall have been employed by law and no later the Company for less than March 15th of such five fiscal year period) immediately preceding the year following the fiscal year in which the Change in Control occurs, provided, however, that in the event there are fewer than 30 whole months (18 whole months if a Change in Control has not occurred) remaining from the Date of Termination to the date of Executive's 70th birthday, the amount calculated in accordance with this Section 3(a)(2) shall be reduced by multiplying such amount by a fraction the numerator of which is the number of months, including a partial month (with a partial month being expressed as a fraction the numerator of which is the number of days remaining in such month and the denominator of which is the number of days in such month), so remaining and the denominator of which is 30 (18 if a Change in Control has not occurred); provided further, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by Executive upon termination of employment of Executive under any severance plan, policy or arrangement of the Company. (b) For a period of 2.5 years (18 months if a Change in Control has not occurred) commencing on the Date occursof Termination, the Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination or, if more favorable to Executive, as provided generally with respect to other peer executives of the Company and its affiliated companies, and the Company and Executive shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. (c) If Executive's during the Termination Period the employment is terminated of Executive shall terminate by the Company without Cause following reason of a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to ExecutiveExecutive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the Agreement, or nine months of Executive’s current base salaryextent not theretofore paid.

Appears in 1 contract

Samples: Employment Agreement (Whitehall Jewellers Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with the Company is terminated of Employee shall terminate, other than by reason ofof a Nonqualifying Termination, then the Employer shall pay to Employee (or Employee's beneficiary or estate) within ten (10) days following the Date of Termination, as compensation for services rendered to the Employer: (i1) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated a lump-sum cash amount equal to the Companysum of (A) Employee's unpaid base salary from the Employer and its affiliate companies through the Date of Termination (without taking into account any reduction of base salary constituting Good Reason), (B) any bonus payments which have become payable, to the extent not theretofore paid, and (C) any compensation previously deferred by Employee other than pursuant to a tax-qualified plan (together with any interest thereon) and any unpaid accrued vacation, each to the extent not theretofore paid; (ii2) termination to the extent not paid under the terms of Executivethe Employer's employment annual incentive compensation plan, a lump-sum cash amount equal to the target award for the Employee under such annual incentive compensation plan for the fiscal year in which his Date of Termination occurs, reduced pro rata for that portion of the fiscal year not completed as of the end of the month in which such Date of Termination occurs; and (3) a lump-sum cash amount equal to the sum of (A) twice the Employee's annual rate of base salary from the Employer and its affiliated companies in effect immediately prior to the Date of Termination (not taking into account any reductions which would constitute Good Reason) plus (B) the average annualized bonus earned by the Company Employee from the Employer (or its Subsidiaries) during the three fiscal years (or shorter annualized period if Employee had not been employed for Cause (as defined below); or (iiithe full three-year period) termination of Executive's employment by ending immediately prior to the Company without Cause following expiration year of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Change in Control. (b) Except in If during the case Termination Period the employment of Employee shall terminate, other than by reason of a Nonqualifying Termination, then for a period of eighteen (18) months following the Date of Termination, the Employer shall provide Employee (and Employee's dependents, if applicable) with the same level of medical, dental, accident, disability, and life insurance benefits upon substantially the same terms and conditions (including contributions required from Employee to receive such benefits) as existed immediately prior to Employee's Date of Termination (or, if more favorable to Employee, as such benefits and terms and conditions existed immediately prior to the Change in Control); provided, which is governed by Section 10(c) belowthat, if ExecutiveEmployee cannot continue to participate in the -------- ---- Employer plans providing such benefits, the Employer shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, if Employee becomes reemployed with another employer and is eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Employee's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior eligibility, but only to the expiration of extent that the Term Employer reimburses Employee for any reason other than for Cause (as defined below), then increased cost and provides any additional benefits necessary to give Employee the Company shall pay to Executive, subject to Section 10(g) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amounts: (i) Executive’s then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursbenefits promised hereunder. (c) If Executive's Any amount of severance paid pursuant to this Section 6 shall offset any other amount of severance to be received by Employee upon termination of employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of Employee under any other severance plan or policy of the TermEmployer, or if including any employment agreement. (d) If during the Executive's Termination Period the employment is terminated of Employee shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company Employer shall pay to Executive, subject Employee within ten (10) days following the Date of Termination a lump sum cash amount equal to Executivethe sum of (i) Employee's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current unpaid base salary and prorated non-equity incentive bonus payouts as referenced above from the Employer through the end Date of Termination, (ii) any bonus payments which have become payable, to the Term of extent not theretofore paid, and (iii) any compensation previously deferred by Employee other than pursuant to a tax-qualified plan (together with any interest thereon) and any unpaid accrued vacation, each to the Agreement, or nine months of Executive’s current base salaryextent not theretofore paid.

Appears in 1 contract

Samples: Employment Agreement (Potomac Bancshares Inc)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate), subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(bCompany and the Subsidiary: (1) abovewithin 30 days following the Date of Termination, a lump-sum cash amount equal to the following amountssum of: (i) the Executive’s then-current 's full annual base salary from the Company and its affiliated companies through the Termination Date;Date of Termination, to the extent not theretofore paid, (ii) pro rata portions the Executive's annual bonus in an amount at least equal to the average annualized (for any fiscal year consisting of less than 12 full months) bonus paid or payable, including by reason of any quarterly deferral, to the Executive by the Company and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then its affiliated companies in effect (provided that any applicable performance measures are achieved); respect of the three fiscal years of the Company immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of which is the number of days in the fiscal year in which the Date of Termination occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) within 30 days following the Date of Termination, a lump-sum cash amount of in an amount equal to the Executive’s then current 's highest annual base salary that Executive would have received from the Termination Company and its affiliated companies in effect during the 12-month period prior to the Date through the date of Termination; provided, however, that is nine months following such Termination Date. Any any amount payable to Executive paid pursuant to this Section 10(b)(iii3(a)(2) shall be subject paid in lieu of any other amount of severance relating to deductions salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (1) For a period of one year commencing on the Date of Termination, the Company shall continue to keep in full force and withholdings effect all medical, dental, accident, disability and life insurance plans with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such plans shall have been in effect immediately prior to the Date of Termination. Notwithstanding the foregoing sentence, if any of the medical, dental, accident, disability or life insurance plans then in effect generally with respect to other peer executives of the Company and its affiliated companies would be more favorable to the Executive, such plan coverage shall be paid substituted for the analogous plan coverage provided to the Executive immediately prior to the Date of Termination, and the Company or the Subsidiary, as the case may be, and the Executive shall share the costs of such -6- plan coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. The obligation of the Company and the Subsidiary to continue coverage of the Executive and the Executive's dependents under such plans shall cease at such time as the Executive and the Executive's dependents obtain comparable coverage under another plan, including a plan maintained by a new employer. Execution of this Agreement by the Executive shall not be considered a waiver of any rights or entitlements the Executive and the Executive's dependents may have under applicable law to continuation of coverage under the group medical plan maintained by the Company or its affiliated companies. (2) The Company shall reimburse the Executive for Executive's expenditures for obtaining outplacement services, provided that the Company shall have no obligation to reimburse the Executive in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date an amount which exceeds 10% of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by Executive's highest annual base salary from the Company and its affiliated companies in effect during the same manner and at 12-month period prior to the same time that incentive bonus payments are made to current employees Date of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occursTermination. (c) If Executive's during the Termination Period the employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement and before the end of the Term, or if the Executive's employment is terminated Executive shall terminate by the Executive for Good Reason following reason of a Change in Control and before the end of the TermNonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a lump-sum cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary from the Company and prorated non-equity incentive bonus payouts as referenced above its affiliated companies through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Bell Sports Corp)

Payments Upon Termination of Employment. (a) If Executive's employment with the Company is terminated by reason of: (i) Executive's abandonment of Executive’s his employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; or the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits)Date. (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if If Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below), then the Company shall pay to Executive, subject to Section 10(g10(i) of this Agreement and in addition to the consideration described in Section 4(b) above, the following amountsAgreement: (i) Executive’s his then-current base salary through the Termination Date; (ii) pro rata portions of any quarterly earned and unpaid annual non-equity bonus payouts under any non-equity incentive-based compensation plans then Incentive Bonus for the fiscal quarter immediately preceding the fiscal quarter in effect (provided that any applicable performance measures are achieved)which the Termination Date occurs; and (iii) the amount of Executive’s then current base salary that Executive would have received a crisp $100 xxxx from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by lawBoard. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus Incentive Bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurslaw. (c) If Executive's employment with the Company is terminated by effective prior to the Company without Cause following a Change in Control as defined in this Agreement and before the end expiration of the Term, or if the Term by reason of Executive's employment is terminated by the Executive for Good Reason following a Change in Control and before the end of the Termdeath or Disability, then the Company shall pay to ExecutiveExecutive or his beneficiary or his estate, subject to Executive's compliance with Section 10(g) of this Agreementas the case may be, the lesser of the total of Executive’s then his then-current base salary and prorated non-equity incentive bonus payouts as referenced above through the end Termination Date, any earned and unpaid quarterly Incentive Bonus for the fiscal quarter preceding the fiscal quarter in which the Termination Date occurs and a pro-rated portion of any quarterly Incentive Bonus for the fiscal quarter in which the Termination Date occurs, based on the number of days during such fiscal quarter that Executive was employed by the Company, payable in the same manner and at the same time that Incentive Bonus payments are made to current employees of the Term of the Agreement, or nine months of Executive’s current base salaryCompany.

Appears in 1 contract

Samples: Employment Agreement (Texas Roadhouse, Inc.)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of Executive shall terminate pursuant to a Qualifying Termination, then the Company is terminated by reason ofshall provide to Executive: (i1) Within ten (10) days following the Date of Termination a lump-sum cash amount equal to the sum of (A) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Date of Termination Date and any and bonus amounts which have become payable, to the extent not previously paid or deferred, plus (B) any accrued vacation pay, to the extent not previously paid; plus (2) Subject to Section 4(c) below, a cash severance amount equal to one (1) times Executive’s highest annual rate of base salary during the 12-month period immediately prior to Executive’s Date of Termination, paid in equal installments over the one-year period commencing with the first regular payroll date following the Date of Termination in accordance with the Company’s normal payroll practices; provided that, if necessary to avoid tax penalties under Section 409A of the Internal Revenue Code of 1986, as amended, the commencement of such payments shall be delayed until the first regular payroll date which occurs more than six months following the Date of Termination, with the first of such payments including all other benefits to payments which Executive may be entitled under any applicable Company policywould have been made during the period of such delay without regard thereto, plan or procedure (without duplication of benefits)interest. (b) Except in If during the case Termination Period the employment of Executive shall terminate other than by reason of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Qualifying Termination, then the Company shall pay to ExecutiveExecutive within thirty (30) days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition a lump-sum cash amount equal to the consideration described in Section 4(b) above, the following amounts: sum of (i1) Executive’s then-current base salary through the Date of Termination Date; (ii) pro rata portions of and any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurs.47 (c) If Executive's employment is terminated by the Company without Cause following a Change in Control as defined in this Agreement Executive acknowledges and before the end of the Term, or if the Executive's employment is terminated by the agrees that any and all payments to which Executive for Good Reason following a Change in Control may become entitled under Section 4(a)(2) above are conditioned upon and before the end of the Term, then the Company shall pay to Executive, subject to Executive's compliance with Section 10(g’s execution of, and not having revoked within any applicable revocation period, a general release and waiver, in such reasonable and customary form as shall be prepared by the Company, of all claims Executive may have against the Company, any Subsidiary and their respective directors, officers and affiliates, except as to (i) matters covered by provisions of this Agreement that expressly survive the termination of this Agreement, (ii) rights to indemnification and insurance under the lesser Charter, By-Laws and directors and officers insurance policies maintained by the Company or any Subsidiary and (iii) rights to which Executive is entitled by virtue of his participation in the employee benefit plans, policies and arrangements of the total of Executive’s then current base salary and prorated non-equity incentive bonus payouts as referenced above through the end of the Term of the Agreement, Company or nine months of Executive’s current base salaryany Subsidiary.

Appears in 1 contract

Samples: Change in Control Severance and Retention Agreement (Sterling Bancorp)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) the Executive’s then-current 's base salary from the Company and its affiliated companies through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions the Executive's annual bonus in an amount determined in accordance with the terms of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and the Company's Management Incentive Plan, (iii) the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to the Executive in accordance with the terms of the Company's 1994 Shareholder Value Incentive Plan and (iv) any compensation previously deferred for the benefit of the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable payroll or other taxes required to be withheld pursuant to Section 10(b)(iii5) shall be subject equal to deductions (i) 2.99 times the Executive's highest annual base salary from the Company and withholdings and shall be its affiliated companies in effect during the 12-month period prior to the Date of Termination, plus (ii) 2.99 times the Executive's highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which the Executive has been employed by the Company for less than 12 full months) bonus, paid or payable, including by reason of any deferral, to the Executive by the Company and its affiliated companies in respect of the same periodic installments five fiscal years of the Company (or such portion thereof during which the Executive performed services for the Company if the Executive shall have been employed by the Company for less than such five fiscal year period) immediately preceding the fiscal year in which the Change in Control occurs; provided, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company. (b) In addition to the payments to be made pursuant to Section 3(a) hereof, any stock options granted to the Executive under the Company's Employee Stock Option Plan of 1988 shall be treated in accordance with the Company's regular payroll practices commencing on the first normal payroll date terms of the Company following the expiration of all applicable rescission periods provided by law. Any amount payable to Executive pursuant to Section 10(b)(ii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees of the Company, but no earlier than the first normal payroll date of the Company following the expiration of all applicable rescission periods provided by law and no later than March 15th of the year following the year in which the Termination Date occurssuch plan. (c) If Executive's employment is terminated by For a period of 36 months commencing on the Date of Termination, the Company without Cause following a Change shall continue to keep in Control full force and effect all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as defined such policies shall have been in this Agreement and before effect immediately prior to the end Date of Termination or, if more favorable to the Executive, as provided generally with respect to other peer executives of the TermCompany and its affiliated companies, or if and the Executive's employment is terminated by Company and the Executive for Good Reason following a Change in Control and before shall share the end costs of the Termcontinuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Date of Termination. (d) If during the Termination Period the employment of the Executive shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to the sum of (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Alberto Culver Co)

Payments Upon Termination of Employment. (a) If Executive's during the Termination Period the employment with of the Company is terminated Executive shall terminate, other than by reason of: (i) Executive's abandonment of Executive’s employment or Executive's resignation for any reason (whether or not such resignation is set forth in writing or otherwise communicated to the Company); (ii) termination of Executive's employment by the Company for Cause (as defined below); or (iii) termination of Executive's employment by the Company without Cause following expiration of the Term; the Company shall pay to Executive his or her then-current base salary through the Termination Date and any and all other benefits to which Executive may be entitled under any applicable Company policy, plan or procedure (without duplication of benefits). (b) Except in the case of a Change in Control, which is governed by Section 10(c) below, if Executive's employment with the Company is terminated by the Company pursuant to Section 9(a)(i) effective prior to the expiration of the Term for any reason other than for Cause (as defined below)Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive's beneficiary or estate) within 30 days following the Date of Termination, subject to Section 10(g) of this Agreement and in addition as compensation for services rendered to the consideration described in Section 4(b) above, the following amountsCompany: (1) a cash amount equal to the sum of (i) the Executive’s then-current 's full annual base salary from the Company through the Termination Date; Date of Termination, to the extent not theretofore paid, (ii) pro rata portions the Executive's annual bonus in an amount at least equal to the highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which the Executive has been employed by the Company for less than 12 full months) bonus paid or payable, including by reason of any quarterly and annual non-equity bonus payouts under any non-equity incentive-based compensation plans then in effect (provided that any applicable performance measures are achieved); and (iii) deferral, to the amount of Executive’s then current base salary that Executive would have received from the Termination Date through the date that is nine months following such Termination Date. Any amount payable to Executive pursuant to Section 10(b)(iii) shall be subject to deductions and withholdings and shall be paid to Executive by the Company in respect of the same periodic installments in accordance with the Company's regular payroll practices commencing on the first normal payroll date three fiscal years of the Company following (or such portion thereof during which the expiration Executive performed services for the Company if the Executive shall have been employed by the Company for less than such three fiscal year period) immediately preceding the fiscal year in which the Change in Control occurs, multiplied by a fraction, the numerator of all which is the number of days in the fiscal year in which the Change in Control occurs through the Date of Termination and the denominator of which is 365 or 366, as applicable, and (iii) any compensation previously deferred by the Executive (together with any interest and earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid; plus (2) a lump-sum cash amount (subject to any applicable rescission periods provided by law. Any amount payable payroll or other taxes required to Executive be withheld pursuant to Section 10(b)(ii5) shall be subject in an amount equal to deductions and withholdings and shall be (i) two (2) times the Executive's highest annual base salary from the Company in effect during the 12-month period prior to the Date of Termination, plus (ii) two (2) times the Executive's highest annualized (for any fiscal year consisting of less than 12 full months or with respect to which the Executive has been employed by the Company for less than 12 full months) bonus, paid or payable, including by reason of any deferral, to the Executive by the Company in the same manner and at the same time that incentive bonus payments are made to current employees respect of the Company, but no earlier than the first normal payroll date five fiscal years of the Company following (or such portion thereof during which the expiration of all applicable rescission periods provided Executive performed services for the Company if the Executive shall have been employed by law and no later the Company for less than March 15th of such five fiscal year period) immediately preceding the year following the fiscal year in which the Change in Control occurs, provided, that any amount paid pursuant to this Section 3(a)(2) shall be paid in lieu of any other amount of severance relating to salary or bonus continuation to be received by the Executive upon termination of employment of the Executive under any severance agreement, plan, policy or arrangement of the Company. (b) For a period of eighteen months commencing on the Date of Termination, the Company shall continue to keep in full force and effect all policies of medical, accident, disability and life insurance with respect to the Executive and his dependents with the same level of coverage, upon the same terms and otherwise to the same extent as such policies shall have been in effect immediately prior to the Date of Termination Date occursand the Company shall pay all costs of the continuation of such insurance coverage. (c) If Executive's employment is terminated by For a period of twelve months commencing on the Company without Cause following a Change in Control as defined in this Agreement and before Date of Termination, the end of the Term, or if the Executive's employment is terminated Executive shall receive outplacement assistance services from an outplacement agency selected by the Executive for Good Reason following a Change and the Company shall pay all costs of such services; provided that such costs shall not exceed $15,000 in Control and before the end aggregate. (d) If during the Termination Period the employment of the TermExecutive shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to Executivethe Executive within 30 days following the Date of Termination, subject a cash amount equal to the sum of: (1) the Executive's compliance with Section 10(g) of this Agreement, the lesser of the total of Executive’s then current full annual base salary and prorated non-equity incentive bonus payouts as referenced above from the Company through the end Date of Termination, to the Term of extent not theretofore paid, and (2) any compensation previously deferred by the AgreementExecutive (together with any interest and earnings thereon) and any accrued vacation pay, or nine months of Executive’s current base salaryin each case to the extent not theretofore paid.

Appears in 1 contract

Samples: Severance Agreement (Bone Care International Inc)