Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive (i) any accrued but unpaid Base Salary through the effective date of the termination, (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time. (b) In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement. (c) In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be: (i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement; (ii) to pay to the Executive a gross amount equal to two (2) times the Executive’s then-current Base Salary, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment; (iii) to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the annual incentive plan during the three (3) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment; (iv) to continue to pay the employer portion of the Executive’s premiums to continue his then-current coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and (v) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment.
Appears in 2 contracts
Samples: Employment Security Agreement (SMURFIT-STONE CONTAINER Corp), Employment Security Agreement (SMURFIT-STONE CONTAINER Corp)
Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive Executive
(i) any accrued but unpaid Base Salary through the effective date of the termination, (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time.
(b) In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement.
(c) In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:
(i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;
(ii) to pay to the Executive a gross amount equal to two (2) times the Executive’s then-current Base Salary, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iii) to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the annual incentive plan during the three (3) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iv) to continue to pay the employer portion of the Executive’s premiums to continue his then-current coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and
(v) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment.
Appears in 1 contract
Samples: Employment Agreement
Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive Executive
(i) any accrued but unpaid Base Salary through the effective date of the termination, ; (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and ; (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time; and (v) any benefits payable pursuant to the Retirement Agreement.
(b) In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive Executive: (i) all such amounts due to him pursuant to Section 7(a) of this Agreement; and (ii) pay to the Executive a pro-rated portion of any incentive bonus(es) (if any) under the annual incentive plan that the Executive would have earned for the performance period(s) in which the effective termination date of his employment occurred as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s) and paid at such time(s) as provided in such annual incentive plan.
(c) In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:
(i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;
(ii) if the termination of the Executive’s employment is for Good Reason pursuant to Section 4(b)(vi), is a result of any other occurrence on or prior to the Promotion Date constituting Good Reason pursuant to Section 4(b), or is on or prior to the Promotion Date and is pursuant to Section 4(d), to pay to the Executive a gross amount lump sum payment equal to the greater of (A) $5,000,000 and (B) two (2) times the sum of the Executive’s then-then- current Base Salary, payable in equal installments during Salary plus the two higher of the Executive’s (2x) year period following average annual incentive bonus for the three fiscal years preceding the effective termination date of the Executive’s his employment;
; and (iiiy) to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the actual annual incentive plan during the three (3) complete fiscal years prior bonus paid with respect to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of his employment;
(iii) if the Executive’s employmentemployment with the Company is terminated for Good Reason after the Promotion Date pursuant to Section 4(b) or without Cause after the Promotion Date pursuant to Section 4(d), payable in and Section 7(c)(ii) above does not apply, to pay the Executive a lump sum payment equal installments during the to (A) two (2) year period following times the sum of the Executive’s then- current Base Salary plus the higher of the Executive’s (x) average annual incentive bonus for the three fiscal years preceding the effective termination date of his employment; and (y) actual annual incentive bonus paid with respect to the fiscal year immediately preceding the effective termination date of his employment, if the Executive does not hold the position of CEO as of the effective date of such termination of his employment; or (B) 2.99 times the sum of the Executive’s then-current Base Salary plus the higher of the Executive’s (x) average annual incentive bonus for the three fiscal years preceding the effective termination date of his employment; and (y) actual annual incentive bonus paid with respect to the fiscal year immediately preceding the effective termination date of his employment, if the Executive holds the position of CEO as of the effective date of such termination of his employment;
(iv) to continue to pay provide benefit coverage under the employer portion Company’s health, dental, and vision plans for a period of the Executive’s premiums to continue his then-current coverage as of either (A) two (2) years following the effective termination date of his employment under if the Company’s comprehensive medical and dental plans for Executive does not hold the period beginning on the position of CEO as of such effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter date, or (B) three (3) years following the effective termination date of his employment if the Executive holds the position of CEO as of such effective date, provided that the Executive shall not be entitled to the benefits provided for in this Section 7(c)(iv) to the extent that he becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Companyunder another employer’s medical and dental benefit plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and;
(v) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment;
(vi) to provide outplacement services through a firm of the Executive’s choosing in an amount equivalent to that provided to other similarly situated executives, provided that such amount may not exceed $50,000, and that such outplacement services must be used within the twelve (12) month period immediately following the effective termination date of the Executive’s employment; and
(vii) to continue to count for purposes of determining the Executive’s age, service with the Company, and benefits pursuant to the terms and conditions of the Retirement Agreement either (A) the two (2) year-period following the effective termination date of his employment if the Executive does not hold the position of CEO as of such effective date, or (B) three (3) year-period following the effective termination date of his employment if the Executive holds the position of CEO as of such effective date.
Appears in 1 contract
Samples: Employment Agreement
Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in the event of the termination of the Executive’s employment, the Company’s sole obligation under this Agreement shall be to pay the Executive (i) any accrued but unpaid Base Salary through the effective date of the termination, ; (ii) any earned but unpaid bonus under the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and ; (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time; and (v) any benefits payable pursuant to the Retirement Agreement.
(b) In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive Executive: (i) all such amounts due to him pursuant to Section 7(a) of this Agreement; and (ii) pay to the Executive a pro-rated portion of any incentive bonus(es) (if any) under the annual incentive plan that the Executive would have earned for the performance period(s) in which the effective termination date of his employment occurred as though he had remained employed and been entitled to receive such bonus(es) for the applicable incentive plan performance period(s), the amount of which pro-rated bonus payment(s) shall be based upon the number of full calendar months in which the Executive was employed during the applicable performance period(s) and paid at such time(s) as provided in such annual incentive plan.
(c) In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:
(i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;
(ii) if the termination of the Executive’s employment is for Good Reason pursuant to Section 4(b)(vi), is a result of any other occurrence on or prior to the Promotion Date constituting Good Reason pursuant to Section 4(b), or is on or prior to the Promotion Date and is pursuant to Section 4(d), to pay to the Executive a gross amount lump sum payment equal to the greater of (A) $5,000,000 and (B) two (2) times the sum of the Executive’s then-current Base Salary, payable in equal installments during Salary plus the two higher of the Executive’s (2x) year period following average annual incentive bonus for the three fiscal years preceding the effective termination date of the Executive’s his employment;
; and (iiiy) to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the actual annual incentive plan during the three (3) complete fiscal years prior bonus paid with respect to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of his employment;
(iii) if the Executive’s employmentemployment with the Company is terminated for Good Reason after the Promotion Date pursuant to Section 4(b) or without Cause after the Promotion Date pursuant to Section 4(d), payable in and Section 7(c)(ii) above does not apply, to pay the Executive a lump sum payment equal installments during the to (A) two (2) year period following times the sum of the Executive’s then-current Base Salary plus the higher of the Executive’s (x) average annual incentive bonus for the three fiscal years preceding the effective termination date of his employment; and (y) actual annual incentive bonus paid with respect to the fiscal year immediately preceding the effective termination date of his employment, if the Executive does not hold the position of CEO as of the effective date of such termination of his employment; or (B) 2.99 times the sum of the Executive’s then-current Base Salary plus the higher of the Executive’s (x) average annual incentive bonus for the three fiscal years preceding the effective termination date of his employment; and (y) actual annual incentive bonus paid with respect to the fiscal year immediately preceding the effective termination date of his employment, if the Executive holds the position of CEO as of the effective date of such termination of his employment;
(iv) to continue to pay provide benefit coverage under the employer portion Company’s health, dental, and vision plans for a period of the Executive’s premiums to continue his then-current coverage as of either (A) two (2) years following the effective termination date of his employment under if the Company’s comprehensive medical and dental plans for Executive does not hold the period beginning on the position of CEO as of such effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter date, or (B) three (3) years following the effective termination date of his employment if the Executive holds the position of CEO as of such effective date, provided that the Executive shall not be entitled to the benefits provided for in this Section 7(c)(iv) to the extent that he becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Companyunder another employer’s medical and dental benefit plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and;
(v) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employment;
(vi) to provide outplacement services through a firm of the Executive’s choosing in an amount equivalent to that provided to other similarly situated executives, provided that such amount may not exceed $50,000, and that such outplacement services must be used within the twelve (12) month period immediately following the effective termination date of the Executive’s employment; and
(vii) to continue to count for purposes of determining the Executive’s age, service with the Company, and benefits pursuant to the terms and conditions of the Retirement Agreement either (A) the two (2) year-period following the effective termination date of his employment if the Executive does not hold the position of CEO as of such effective date, or (B) three (3) year-period following the effective termination date of his employment if the Executive holds the position of CEO as of such effective date.
Appears in 1 contract
Samples: Employment Agreement (SMURFIT-STONE CONTAINER Corp)
Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in In the event that Employee's employment with the Company is terminated without Cause (as defined below) prior to the expiration of the termination of the Executive’s employmentEmployment Term, the Company’s sole obligation under this Agreement then Employee shall be entitled to pay receive the Executive (i) any accrued but unpaid equivalent of his then Base Salary through the effective date expiration of the terminationEmployment Term (the “Severance Period”), (ii) any earned but unpaid bonus under per the Company’s annual incentive plan pursuant to, and in accordance with, the terms and conditions requirements of such plan; (iii) any earned but unused vacation time as determined in accordance with the Company’s policies then in effect, and (iv) any unreimbursed expenses pursuant to Section 3(e) of this Agreement existing at that time9.
(b) In the event that the Executive terminates his If Employee's employment with the Company terminates during the Employment Term for any reason other than as a result of Employee's termination without Good Reason in accordance with Section 4(b) of this AgreementCause, subject then Employee shall only be entitled to receive Employee's Base Salary through the Termination Date and reimbursement for business expenses incurred prior to the terms Termination Date and conditions shall not be entitled to any other salary, compensation or benefits from the Company thereafter, except as otherwise specifically provided for under the Company's employee benefit plans or as otherwise expressly required hereunder or by applicable law.
(c) The Company may terminate Employee’s employment for Cause during the Employment Term. For purposes of this Agreement, the CompanyPresident and CEO shall have “Cause” to terminate Employee’s sole obligation shall be employment hereunder upon Employee’s: {N4365466.4} 4
(i) failure to pay abide by reasonable rules and regulations governing the transaction of business of the Company as determined solely by the President and CEO;
(ii) commission of acts within employment with the Company amounting to gross negligence or intentional misconduct;
(iii) misappropriation of funds or property of the Company or committing any fraud against the Company or against any other person or entity in the course of providing services to the Executive all such amounts due Company;
(iv) breach of any fiduciary duty or otherwise obtaining personal profit or benefit from any transaction which is adverse to him pursuant the interests of the Company or to Section 7(athe protection or benefits of which the Company is entitled;
(v) commission of a felony or other crime involving moral turpitude; and/or
(vi) material violation of any term of this Agreement.
(cd) In the event The Parties agree that the Company terminates the ExecutiveEmployee’s 33,334 unvested restricted stock units will vest on March 8, 2022 regardless of Employee’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:
(i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;
(ii) to pay to the Executive a gross amount equal to two (2) times the Executive’s then-current Base Salary, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iii) to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the annual incentive plan during the three (3) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iv) to continue to pay the employer portion of the Executive’s premiums to continue his then-current coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and
(v) to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employmentstatus.
Appears in 1 contract
Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in If during the event Termination Period the employment of the termination Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive’s employmentbeneficiary or estate):
(1) within 30 days following the Date of Termination, as compensation for services rendered to the Company’s sole obligation under this Agreement shall be , a cash amount equal to pay the Executive sum of (i) any accrued but unpaid Base Salary the Executive’s base salary from the Company and its affiliated companies through the effective date Date of the terminationTermination, (ii) any earned but unpaid bonus under the CompanyExecutive’s annual incentive plan pursuant to, and bonus in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as an amount determined in accordance with the terms of the Company’s policies then Management Incentive Plan or any other applicable bonus plan of the Company, (iii) the amount payable to the Executive in effect, accordance with the terms of the Company’s Shareholder Value Incentive Plan and (iv) any unreimbursed expenses pursuant accrued vacation pay, in each case to Section 3(e) of this Agreement existing at that time.the extent not theretofore paid; plus
(b2) In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms no earlier than six months and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement.
(c) In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms no later than six months and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar seven days after the effective date Date of Termination, a lump-sum cash amount equal, in the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d)aggregate to, 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:
(i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;
(ii) to pay to the Executive a gross amount equal to two (2) 2.99 times the Executive’s then-current Base Salary“base amount,” as such term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, payable as amended (the “Code”); provided, that any amount paid pursuant to this Section 3(a)(2) shall be paid in equal installments during lieu of any other amount of severance relating to salary or bonus continuation to be received by the two Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company.
(3) In addition to the payments to be made pursuant to Section 3(a)(1) and (2) year hereof, any stock options granted to the Executive under any of the Company’s Employee Stock Option Plans shall be treated in accordance with the terms of such plans and any amounts deferred for the benefit of the Executive (together with any interest and earnings thereon) under any deferred compensation plan of the Company shall be paid in accordance with the terms of those plans.
(4) For a period following of 36 months commencing on the effective termination date 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. Any group health coverage provided under this Section 3(a)(4) shall be applied toward the satisfaction of and not supplement, the Executive’s employment;
(iii) right to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the annual incentive plan during the three (3) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iv) to continue to pay the employer portion of the Executive’s premiums to continue his then-current continued coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended amended, or any similar state law. To the extent that premiums paid by the Company for coverage other than medical coverage constitute taxable income to the Executive, the portion of such taxable premiums that, in the aggregate, exceeds the limit in effect under Section 402(g)(1)(B) of the Code for the year that includes the Date of Termination shall not be paid during the six month period following the Date of Termination. The Executive shall be required to pay any such premiums that come due during the six month period, and shall be reimbursed by the Company no later than the seventh day after the end of such six month period for any such premiums paid by the Executive.
(“COBRA”b) (provided that If during the Termination Period the employment of the Executive has timely elected such COBRA coverage shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to the Executive within 30 days following the Date of Termination, a cash amount equal to the sum of (1) the Executive’s full annual base salary from the Company through the Date of Termination, (2) the Executive’s annual bonus in an amount determined in accordance with the terms of the Company’s Management Incentive Plan or any other applicable bonus plan of the Company, (3) the amount payable to the Executive in accordance with the terms of the Company’s Shareholder Value Incentive Plan and (4) any accrued vacation pay, in each case to the extent not theretofore paid. In addition to the payments to be made pursuant to this Section 3(b), any stock options granted to the Executive under any of the Company’s Employee Stock Option Plans shall be treated in accordance with the terms of such plans and amounts deferred for the benefit of the Executive (together with any interest and earnings thereon) under any deferred compensation plan of the Company policy and applicable law); andshall be paid in accordance with the terms of those plans.
(vc) Notwithstanding the foregoing, if the Company or the Executive reasonably and in good faith determines that payment of any amount pursuant to this Section 3 at the time provided for herein would cause any amount payable under this Agreement to be subject to Section 409A(a)(1) of the Code, then such amount shall instead be paid at the earliest time at which it may be paid without causing this Agreement to be subject to Section 409A(a)(1) of the Code and all of the provisions of this Agreement shall be interpreted in a manner consistent with this Section 3(c). The Company shall have the right to make such amendments, if any, to this Agreement as shall be necessary to avoid the application of Section 409A(a)(1) of the Code to the payments of amounts pursuant to this Section 3, and shall give prompt notice of any such amendment to the Executive. If the Company defers payments to the Executive pursuant to this Section 3(c), then the Company shall provide Executive with prompt written notice thereof, including reasonable explanation and the estimated date on which it has determined it is permitted to make the payments deferred under this Section 3(c). In any event, such amounts will not be paid earlier than six months and later than six months and seven days after the Date of Termination, provided, however, that benefits provided under Section 3(a)(4) shall extend beyond this period pursuant to the terms of such benefits and (ii) to the extent provided for in it is determined that Section 409A of the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit ACode would apply to a benefit under Section 3(a)(4), cause any and all unvested portions the Executive shall pay the full cost of such benefit for a period of six months after the Executive’s restricted shares, stock optionsDate of Termination, and any not earlier than six months and all other equity-based awards not later than six months and seven days after the Date of Termination the Company shall reimburse the Executive for the amounts paid by the Executive during such period which are required to become vested and exercisable (as applicable) as of be paid by the effective date of the Executive’s termination of employmentCompany pursuant to Section 3(a)(4).
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Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in If during the event Termination Period the employment of the termination Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive’s employmentbeneficiary or estate) within 30 days following the Date of Termination, as compensation for services rendered to the Company’s sole obligation under this Agreement shall be :
(1) a cash amount equal to pay the Executive sum of (i) any accrued but unpaid Base Salary the Executive’s base salary from the Company and its affiliated companies through the effective date Date of Termination, to the terminationextent not theretofore paid, (ii) any earned but unpaid bonus under the CompanyExecutive’s annual incentive plan pursuant to, and bonus in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as an amount determined in accordance with the terms of the Company’s policies then Management Incentive Plan, (iii) the amount payable to the Executive in effect, accordance with the terms of the Company’s 1994 Shareholder Value Incentive Plan and (iv) any unreimbursed expenses 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, 1.99 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(e3(a)(2) shall be paid in lieu of this Agreement existing at that timeany 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 event that payments to be made pursuant to Section 3(a) hereof, any stock options granted to the Executive terminates his employment with under the Company without Good Reason Company’s Employee Stock Option Plan of 1988 shall be treated in accordance with Section 4(b) of this Agreement, subject to the terms and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreementplan.
(c) In For a period of 24 months commencing on the event that Date of Termination, the Company terminates the Executive’s employment pursuant shall continue to Section 4(d) keep in full force and effect all policies of this Agreement or medical, accident, disability and life insurance with respect to the Executive terminates and his employment dependents with the Company for Good Reason in accordance with Section 4(b) same level of this Agreementcoverage, subject upon the same terms and otherwise to the terms 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 Company and conditions of this Agreementits affiliated companies, and provided that the Company and the Executive executes (without revoking) and returns shall share the costs of the continuation of such insurance coverage in the same proportion as such costs were shared immediately prior to the Company an enforceable waiver and release in Date of Termination.
(d) If during the Termination Period the employment of the Executive shall terminate by reason of a form acceptable to Nonqualifying Termination, then the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar days after the effective date of the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d), 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:
(i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) within 30 days following the Date of this Agreement;
(ii) to pay to the Executive Termination, a gross cash amount equal to two the sum of (1) the Executive’s full annual base salary from the Company through the Date of Termination, to the extent not theretofore paid and (2) times the Executive’s then-current Base Salary, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iii) to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned any compensation previously deferred by the Executive under the annual incentive plan during the three (3together with any interest and earnings thereon) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iv) to continue to pay the employer portion of the Executive’s premiums to continue his then-current coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparableany accrued vacation pay, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) (provided that the Executive has timely elected such COBRA coverage in accordance with Company policy and applicable law); and
(v) each case to the extent provided for in the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit A), cause any and all unvested portions of the Executive’s restricted shares, stock options, and any and all other equity-based awards to become vested and exercisable (as applicable) as of the effective date of the Executive’s termination of employmentnot theretofore paid.
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Payments Upon Termination of Employment. (a) The parties acknowledge and agree that except as expressly provided in Sections 7(b), (c) and (d) of this Agreement, in If during the event Termination Period the employment of the termination Executive shall terminate, other than by reason of a Nonqualifying Termination, then the Company shall pay to the Executive (or the Executive’s employmentbeneficiary or estate):
(1) within 30 days following the Date of Termination, as compensation for services rendered to the Company’s sole obligation under this Agreement shall be , a cash amount equal to pay the Executive sum of (i) any accrued but unpaid Base Salary the Executive’s base salary from the Company and its affiliated companies through the effective date Date of the terminationTermination, (ii) any earned but unpaid bonus under the CompanyExecutive’s annual incentive plan pursuant to, and bonus in accordance with, the terms and conditions of such plan; (iii) any earned but unused vacation time as an amount determined in accordance with the terms of the Company’s policies then Management Incentive Plan or any other applicable bonus plan of the Company, (iii) the amount payable to the Executive in effect, accordance with the terms of the Company’s Shareholder Value Incentive Plan and (iv) any unreimbursed expenses pursuant accrued vacation pay, in each case to Section 3(e) of this Agreement existing at that time.the extent not theretofore paid; plus
(b2) In the event that the Executive terminates his employment with the Company without Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms no earlier than six months and conditions of this Agreement, the Company’s sole obligation shall be to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement.
(c) In the event that the Company terminates the Executive’s employment pursuant to Section 4(d) of this Agreement or the Executive terminates his employment with the Company for Good Reason in accordance with Section 4(b) of this Agreement, subject to the terms no later than six months and conditions of this Agreement, and provided that the Executive executes (without revoking) and returns to the Company an enforceable waiver and release in a form acceptable to the Company (a “Release Agreement”) within the time period specified by the Company (which time period shall not be more than sixty (60) calendar seven days after the effective date Date of Termination, a lump-sum cash amount equal, in the Executive’s termination of employment) and further provided that the Executive remains in compliance with Sections 2(d)aggregate to, 8 and 9 of this Agreement, the Company’s sole obligation under this Agreement shall be:
(i) to pay to the Executive all such amounts due to him pursuant to Section 7(a) of this Agreement;
(ii) to pay to the Executive a gross amount equal to two (2) 1.99 times the Executive’s then-current Base Salary“base amount,” as such term is defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, payable as amended (the “Code”); provided, that any amount paid pursuant to this Section 3(a)(2) shall be paid in equal installments during lieu of any other amount of severance relating to salary or bonus continuation to be received by the two Executive upon termination of employment of the Executive under any severance plan, policy or arrangement of the Company.
(3) In addition to the payments to be made pursuant to Section 3(a)(1) and (2) year hereof, any stock options granted to the Executive under any of the Company’s Employee Stock Option Plans shall be treated in accordance with the terms of such plans and any amounts deferred for the benefit of the Executive (together with any interest and earnings thereon) under any deferred compensation plan of the Company shall be paid in accordance with the terms of those plans.
(4) For a period following of 24 months commencing on the effective termination date 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 her 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. Any group health coverage provided under this Section 3(a)(4) shall be applied toward the satisfaction of and not supplement, the Executive’s employment;
(iii) right to pay to the Executive a gross amount equal to two (2) times the greater of (A) the average of the gross amounts earned by the Executive under the annual incentive plan during the three (3) complete fiscal years prior to the effective termination date of the Executive’s employment and (B) the actual gross amount earned by the Executive under the annual incentive plan during the fiscal year immediately preceding the effective termination date of the Executive’s employment, payable in equal installments during the two (2) year period following the effective termination date of the Executive’s employment;
(iv) to continue to pay the employer portion of the Executive’s premiums to continue his then-current continued coverage as of the effective termination date of his employment under the Company’s comprehensive medical and dental plans for the period beginning on the effective date of the Executive’s termination of employment and ending on the earlier of (A) two years thereafter or (B) the date the Executive becomes eligible for coverage by a medical and dental plans maintained by an entity other than the Company or an Affiliate that provide coverage or benefits at least comparable, in all material respects, to the Company’s medical and dental plans, with the period of such coverage to run concurrently with any coverage period provided under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended amended, or any similar state law. To the extent that premiums paid by the Company for coverage other than medical coverage constitute taxable income to the Executive, the portion of such taxable premiums that, in the aggregate, exceeds the limit in effect under Section 402(g)(1)(B) of the Code for the year that includes the Date of Termination shall not be paid during the six month period following the Date of Termination. The Executive shall be required to pay any such premiums that come due during the six month period, and shall be reimbursed by the Company no later than the seventh day after the end of such six month period for any such premiums paid by the Executive.
(“COBRA”b) (provided that If during the Termination Period the employment of the Executive has timely elected such COBRA coverage shall terminate by reason of a Nonqualifying Termination, then the Company shall pay to the Executive within 30 days following the Date of Termination, a cash amount equal to the sum of (1) the Executive’s full annual base salary from the Company through the Date of Termination, (2) the Executive’s annual bonus in an amount determined in accordance with the terms of the Company’s Management Incentive Plan or any other applicable bonus plan of the Company, (3) the amount payable to the Executive in accordance with the terms of the Company’s Shareholder Value Incentive Plan and (4) any accrued vacation pay, in each case to the extent not theretofore paid. In addition to the payments to be made pursuant to this Section 3(b), any stock options granted to the Executive under any of the Company’s Employee Stock Option Plans shall be treated in accordance with the terms of such plans and amounts deferred for the benefit of the Executive (together with any interest and earnings thereon) under any deferred compensation plan of the Company policy and applicable law); andshall be paid in accordance with the terms of those plans.
(vc) Notwithstanding the foregoing, if the Company or the Executive reasonably and in good faith determines that payment of any amount pursuant to this Section 3 at the time provided for herein would cause any amount payable under this Agreement to be subject to Section 409A(a)(1) of the Code, then such amount shall instead be paid at the earliest time at which it may be paid without causing this Agreement to be subject to Section 409A(a)(1) of the Code and all of the provisions of this Agreement shall be interpreted in a manner consistent with this Section 3(c). The Company shall have the right to make such amendments, if any, to this Agreement as shall be necessary to avoid the application of Section 409A(a)(1) of the Code to the payments of amounts pursuant to this Section 3, and shall give prompt notice of any such amendment to the Executive. If the Company defers payments to the Executive pursuant to this Section 3(c), then the Company shall provide Executive with prompt written notice thereof, including reasonable explanation and the estimated date on which it has determined it is permitted to make the payments deferred under this Section 3(c). In any event, such amounts will not be paid earlier than six months and later than six months and seven days after the Date of Termination, provided, however, that benefits provided under Section 3(a)(4) shall extend beyond this period pursuant to the terms of such benefits and (ii) to the extent provided for in it is determined that Section 409A of the Executive’s applicable Award Agreements (including without limitation, such Award Agreement(s) attached hereto as Exhibit ACode would apply to a benefit under Section 3(a)(4), cause any and all unvested portions the Executive shall pay the full cost of such benefit for a period of six months after the Executive’s restricted shares, stock optionsDate of Termination, and any not earlier than six months and all other equity-based awards not later than six months and seven days after the Date of Termination the Company shall reimburse the Executive for the amounts paid by the Executive during such period which are required to become vested and exercisable (as applicable) as of be paid by the effective date of the Executive’s termination of employmentCompany pursuant to Section 3(a)(4).
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