Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which has accrued but is unpaid, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6. (b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above. (c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. (d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof. (e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 5 contracts
Samples: Employment Agreement (Pittway Corp /De/), Employment Agreement (Pittway Corp /De/), Employment Agreement (Pittway Corp /De/)
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereofend, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease thereafter be entitled to have any rights to salary, bonus (if any) or benefits other than: and only to):
(i) any salary or bonus which has accrued been earned but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any vacation days which have accrued but are unused and unexpired under the Company's vacation policy, as of the end of the Employment Period, ;
(ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and employment;
(iii) any benefits to which Executive is entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"); and
(iv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6Paragraph 5.
(b) If In the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account event of Executive's death Retirement or Termination for Disabilityduring the Employment Period, the Company shall make no further payments pay to Executive's estate (or such person or persons as Executive except may designate in a written instrument signed by him) amounts equal to the amounts Executive would have received as contemplated salary and bonus had the Employment Period remained in (a) (i) and (ii) aboveeffect until the date on which it was scheduled to end, at the times such amounts would have been paid.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, : (i) the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination; and (ii) the Company shall pay to Executive an amount equal to any amount Executive would have received as bonus had the Employment Period remained in effect until the date on which it was scheduled to end, reduced to the fraction thereof of which the numerator is the number of days during the Employment Period which have elapsed as of the end of the Employment Period and the denominator is 731, at the time such amount would have been paid.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Company: (i) shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) and bonus had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event paid, less payments, if any, to which Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected shall permit Executive to participate, until the date on which the Employment Period was scheduled to end, in any medical, dental and life insurance programs included in the Company's standard benefits package in effect from time to time, on the same basis (including sharing of costs) as other executives of the Company having principal responsibility for magazines comparable in profit contribution to those for which Executive had principal responsibility at the end of the Employment Period, in the case of each of such programs to the extent participation by a former employee is permitted by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionterms thereof. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 Paragraph 6 or 10 7 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 4 contracts
Samples: Employment Agreement (Penton Media Inc), Employment Agreement (Penton Media Inc), Employment Agreement (Penton Media Inc)
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the following:
(i) payment equal to one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the Target Bonus set forth in clause (i) of subparagraph 4(b) hereof for the fiscal year prior to the year of termination of Executive’s employment, payable in twelve equal monthly installments commencing on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death;
(ii) the Company shall request that the Compensation Committee of the Board of Directors of BHI approve vesting of all unvested restricted stock grants effective as of the Date of Termination. In the event the Compensation Committee does not approve such vesting, all unvested restricted stock grants shall be cancelled in accordance with the applicable award agreement, and the Company shall pay out the Fair Market Value (as defined in the plan pursuant to Executive amounts equal to which each award was granted) as of the amounts Executive would have received Date of Termination of the unvested restricted stock grants;
(iii) continued participation in the Company’s medical and dental plans, on the same basis as salary (based on Executive's salary then active employees participate in effect orsuch plans, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which earlier of (without 1) Executive’s eligibility for any extension thereofsuch coverage under another employer’s or any other medical or dental insurance plans or (2) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee first anniversary of the Company, less such payments)Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(iv) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(v) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subsection 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 3 contracts
Samples: Employment Agreement (BlueLinx Holdings Inc.), Employment Agreement (BlueLinx Holdings Inc.), Employment Agreement (BlueLinx Holdings Inc.)
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, (ii) any Annual Bonus that has been earned for the calendar year preceding the calendar year in which termination occurs but is unpaid, (iii) a pro-rata portion of Executive’s Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such Annual Bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that Executive is employed by the Company and the denominator of which is 365), payable at the same time Annual Bonuses for such year are paid to other senior executives of the Company, (iv) any reimbursable expenses that have been incurred but are unpaid, (v) pay for any vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, and (vi) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the date on extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy). Except as specifically described in this Section 6(a) and in the succeeding subparagraphs of this Section 6 (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereofunder the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus bonus, expense reimbursements or other benefits from the Company. The Company will pay (if anydirectly or through a subsidiary or other Affiliate) or benefits other than: the amounts set forth in subclauses (i) through (v) above to Executive in a lump sum as soon as administratively practicable after Executive’s Date of Termination but no later than is required by applicable law; provided, however, that if payment of any salary which has accrued but is unpaidsuch amount at such time would result in a prohibited acceleration under Section 409A of the Internal Revenue Code of 1986, and any expenses which as amended (the “Code”), then such amount shall be paid at the time the amount would have been incurred but are unpaidpaid under the applicable plan, as of the end of the Employment Periodpolicy, (ii) (but only program or arrangement relating to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6such amount absent such prohibited acceleration.
(b) If the Employment Period ends pursuant to paragraph in accordance with Section 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement ’s death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive pursuant to this Agreement except as contemplated in (aSection 6(a) (i) and (ii) aboveexcluding, in the event of a Termination for Cause, any amount payable pursuant to Section 6(a)(iii)).
(c) If In addition to the payments set forth in Section 6(a), subject to Section 12, if the Employment Period ends early pursuant to paragraph in accordance with Section 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall, subject to Section 6(d) below and Executive’s continued compliance with the obligations in Section 7 hereof, be entitled to the following:
(i) severance benefits equal to (A) one (1) times Executive’s Base Salary for the year in which the Date of Termination occurs (the “Termination Year Salary”), less applicable withholdings and deductions, paid in equal installments over the twelve (12) months following the effective date of such termination pursuant to the Company’s payroll practices, plus (B) an amount equal to the Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred (together with the Termination Year Salary, the “Cash Severance Benefits”), payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would be paid had the performance hurdles been met) to other senior executives of the Company (for the avoidance of doubt the payment in this clause (B) shall not be contingent on any performance goals or bonus criteria). Notwithstanding any of the foregoing, however, to the extent permitted by Section 409A of the Code, if the Company elects to extend the Restricted Period (as defined below) through the twenty-four (24)-month period following the Date of Termination, the Company shall pay to Executive amounts Executive, instead of the Cash Severance Benefits, severance benefits equal to (X) two (2) times Executive’s Termination Year Salary, less applicable withholdings and deductions, paid in equal installments over the twenty-four (24) months following the effective date of such termination pursuant to the Company’s payroll practices, plus (Y)(I) an amount equal to the amounts Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred, payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) be paid had the Employment Period remained performance hurdles been met) to other senior executives of the Company, and (II) an amount equal to the Annual Bonus which Executive received for the year prior to the year in effect until which the date on which (without any extension thereof) it was then scheduled to endDate of Termination occurred, payable at the times such amounts would have been same time the Annual Bonuses for the second year following the year in which the Date of Termination occurred are paid (or would be paid had the performance hurdles been met) to other senior executives of the Company; provided that for the avoidance of doubt the payments in this clause (Y) shall not be contingent on any performance goals or bonus criteria; and
(ii) subject to (A) Executive’s timely election of continuation coverage under the event Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (B) Executive’s continued copayment of premiums at the same level and cost to Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which as if Executive has participated as was an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s medical and dental plans, less on the same basis (including cost) as active employees participate in such payments)plans, until the earlier of (I) Executive’s eligibility for any such coverage under another employer’s medical or dental insurance plans; provided, however, or (II) the second anniversary of the Date of Termination; except that in the event that participation in any such plan is barred or would adversely affect the tax status of Executive's death during the payment periodplan pursuant to which the coverage is provided, the Company shall not be obligated pay the premium required to pay any subsequent continue such amountscoverage pursuant to COBRA (the “COBRA Premium”) and to the extent such COBRA period expires, but the Company shall pay the lesser of (x) the COBRA Premium and (y) the premium required to Executive's estate continue such coverage after COBRA coverage is converted to individual plan(s).
(or such person or persons d) The Company shall make no payments in accordance with Section 6(c) if Executive declines to sign and return a Release Agreement in substantially the same form that is attached hereto as Executive may designate in a written instrument signed by him Appendix 2. Such Release Agreement shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination. No payments shall be made in accordance with Section 6(c) until the Company prior to his death) either (i) amounts during the remainder expiration of the revocation period provided for in the Release Agreement. The first installment payment period equal to one-half following the expiration of the revocation period shall include all amounts which that would otherwise have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within during the period beginning on the Date of sixty (60) days after Termination and ending on the date of Executive's deaththe first installment payment (for the avoidance of doubt, a lump sum amount equivalent without interest). Notwithstanding anything to the discounted present value contrary contained or implied in this Section 6, if the 60th day following the Date of such reduced amountsTermination falls in a different calendar year than the Date of Termination, discounted at then notwithstanding the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at actual date on which Executive signs and returns the date of notice Release Agreement (and the Release Agreement becomes no longer subject to revocation), payments under Section 6(c) shall not commence prior to the Company of such election, with said amount to be paid on a date no later than thirty (30) days 60th day following the date Date of notice Termination. In addition, notwithstanding the foregoing, nothing in the Release Agreement will require Executive to release any vested claims or rights he has against the Company, or Company’s obligations to Executive, arising out of or relating to any vested employee benefits, including vested equity awards, to which Executive is entitled and that exist prior to the Company signing of such electionthe Release Agreement. It is expressly understood that the Company's payment obligations under this (d) shall cease This limitation in the event Executive breaches any Release Agreement includes, but is not limited to, Executive’s severance payments, rights to indemnification and advancement of his agreements expenses as set forth herein and in paragraph 7the Company Group’s governing documents, 9 vested rights regarding profit interests, equity options, restricted equity units, stock appreciation rights, equity previously awarded to Executive, equity incentives, 401(k) retirement plan or 10 hereofother benefits, including without limitation health, medical, life, disability and other insurance plans or programs or fringe benefits.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on account the part of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) abovehereunder or otherwise.
Appears in 3 contracts
Samples: Employment Agreement (Aveanna Healthcare Holdings, Inc.), Employment Agreement (Aveanna Healthcare Holdings, Inc.), Employment Agreement (Aveanna Healthcare Holdings, Inc.)
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which has accrued but is unpaid, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(samounts(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 2 contracts
Samples: Employment Agreement (Pittway Corp /De/), Employment Agreement (Pittway Corp /De/)
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement (provided such Retirement is not a Termination Following a Change of Control) or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, and such termination does not constitute a Termination Following a Change of Control, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid Employment Period ends (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments), payable at the times such amounts would have been paid; providedPROVIDED, howeverHOWEVER, that if Executive so chooses, in the event of Executive's death during the his sole discretion, such payment periodunder this subparagraph (d) shall be made in a lump sum. In addition, the Company shall not be obligated reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to pay any subsequent such amounts, but Executive (for Executive and his dependents) by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered subsequent to the Company prior to his death) either (i) amounts during the remainder end of the payment period equal Employment Period pursuant to one-half the requirements of COBRA as in effect on the amounts which would have been paid date of this Agreement. The Company shall make no further payments to Executive but for his death or except as contemplated in (a)(i), (ii) if so elected by the payee(sand (iii) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionabove. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, and such termination does not constitute a Termination Following a Change of Control, the Company shall make no further payments to Executive except as contemplated in (aa)(i), (ii) and (iii) above.
(i) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination Following a Change of Control, Executive shall be entitled to receive an amount equal to two times the sum of (A) Executive's base salary at the time of such termination (or, if higher, Executive's Reference Salary) and (B) Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs), payable at the times such amounts would have been paid; PROVIDED, HOWEVER, that if Executive so chooses, in his sole discretion, such payment under this subparagraph (f)(i) shall be made in a lump sum. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the date of this Agreement.
(ii) aboveNotwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any bonus, stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would be an "Excess Parachute Payment," within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement is required pursuant to the preceding sentence shall be made at the expense of the Company, if requested by the Executive or the Company, by the Company's independent accountants. The fact that the Executive's right to payments or benefits may be reduced by reason of the limitations contained in this paragraph 6(f) shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this paragraph 6(f), the Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this paragraph 6(f). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Date of Termination, the Company may effect such reduction in any manner it deems appropriate.
(g) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite "prime rate" as quoted from time to time during the relevant period in the Midwest Edition of THE WALL STREET JOURNAL. Such interest will be payable as it accrues on demand. Any change in such prime rate will be effective on and as of the date of such change.
(h) Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (Penton Media Inc), Employment Agreement (Penton Media Inc)
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(i) payment equal to Executive amounts one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the amounts Executive would have received Target Bonus set forth in clause (i) of subparagraph 4(b) hereof for the fiscal year prior to the year of termination of Executive’s employment, payable in twelve equal monthly installments commencing on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death;
(ii) automatic vesting of all unvested restricted stock grants effective as salary of the Date of Termination;
(based iii) continued participation in the Company’s medical and dental plans, on Executive's salary then the same basis as active employees participate in effect orsuch plans, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which earlier of (without 1) Executive’s eligibility for any extension thereofsuch coverage under another employer’s or any other medical or dental insurance plans or (2) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee first anniversary of the Company, less such payments)Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(iv) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(v) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subsection 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (BlueLinx Holdings Inc.), Employment Agreement (BlueLinx Holdings Inc.)
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement or ’s death, Disability, Voluntary Termination, Termination for DisabilityCause or the end of the Employment Period in accordance with subsection 5(a) due to the Executive giving the Company written notice of nonrenewal, the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(1) payment equal to Executive amounts one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the amounts Executive Target Bonus set forth in clause (iii) of subsection 4(c) hereof, payable in twelve equal monthly installments commencing on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death;
(2) if the termination occurs prior to February 19, 2011 the 60,000 shares of restricted stock issued upon Executive’s hiring pursuant to Section 4(a) shall immediately vest;
(3) automatic vesting of all unvested restricted stock grants effective as of the Date of Termination;
(4) a lump sum payment, payable on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death, in cash in an amount equal to the contributions the Company would have received as made (excluding any salary reduction contributions pursuant to an election of the Executive) for the benefit of the Executive to the Company’s qualified salaried 401(k) plan (based on Executive's salary then in effect or, if greater, Executive's Reference Salarythe Company is making matching contributions or other contributions to the salaried 401(k) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, plan at the times such amounts would have been paid time of the Executive’s termination), assuming (in i) the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated continued as an employee of the Company for a period of one year beginning on the Executive’s Date of Termination, and (ii) the Executive during such period contributed six percent of his base salary (as in effect immediately prior to the Date of Termination) to the 401(k) plan;
(5) continued participation in the Company’s medical and dental plans, less on the same basis as active employees participate in such payments)plans, until the earlier of (i) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (ii) the first anniversary of the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(6) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(7) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subsection 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the Release Agreement. In no event Executive breaches shall the Release Agreement release any of his agreements claim for indemnification by the Company or amounts and benefits set forth in paragraph 7, 9 or 10 subsection 6(a) hereof.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (BlueLinx Holdings Inc.), Employment Agreement (BlueLinx Holdings Inc.)
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(i) payment equal to Executive amounts one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the amounts Executive would have received Target Bonus set forth in clause (i) of subsection 4(b) hereof for the fiscal year prior to the year of termination of Executive’s employment, payable in twelve equal monthly installments commencing on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death;
(ii) automatic vesting of all unvested restricted stock grants effective as salary of the Date of Termination;
(based iii) continued participation in the Company’s medical and dental plans, on Executive's salary then the same basis as active employees participate in effect orsuch plans, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which earlier of (without 1) Executive’s eligibility for any extension thereofsuch coverage under another employer’s or any other medical or dental insurance plans or (2) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee first anniversary of the Company, less such payments)Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(iv) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(v) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subsection 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (BlueLinx Holdings Inc.), Employment Agreement (BlueLinx Holdings Inc.)
Post-Employment Period Payments. (a) If Except as otherwise provided in Section 6(c) below, at the Date of Termination, Executive will be entitled to: (i) any Base Salary that has accrued but is unpaid, any properly reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy), and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this Section 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination. Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveSection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall, in addition to the Company shall pay benefits and payments described in Section 6(a), be entitled to Executive amounts any earned but unpaid annual bonus for the fiscal year prior to the year in which the Date of Termination occurs and, contingent upon Executive’s execution of a Separation and Release Agreement in a form substantially similar, but subject to modifications consistent with legal or market changes, to that attached as Exhibit A to this Agreement and defined in Section 8(s), the following:
(i) a payment equal to two (2) times Executive’s annual Base Salary in effect immediately prior to the Date of Termination (the ‘‘Severance Amount” as defined in Section 8(t)). The Severance Amount, up to an amount equal to the amounts Executive would have received “Separation Pay”, as salary defined in Section 8(u), shall be paid in a lump sum no later than ten (10) business days after the effective date of the Separation and Release Agreement. The Severance Amount in excess of the Separation Pay, if any, shall be paid in a lump sum on the earlier to occur of the first business day following the date which is six (6) months after the Date of Termination or the tenth (10th) business day following the date of Executive’s death, provided that, in the case of death, no amount will be paid prior to the first regular pay day following the effective date of the Separation and Release Agreement, at which time any missed payments will also be paid;
(ii) all unvested time-vested restricted stock unit grants shall automatically vest and become non-forfeitable;
(iii) all unvested performance-vested performance share unit or restricted stock unit grants shall remain outstanding and shall vest and become non-forfeitable in accordance with their terms and based on Executive's salary then the actual performance of the Company;
(iv) continued participation in effect orthe Company’s medical and dental plans, if greateron the same basis as active employees participate in such plans, Executive's Reference Salary) had the Employment Period remained in effect until the earlier of (1) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (2) the date on which that is one (without any extension thereof1) it was then scheduled to end, at year after the times such amounts would have been paid (Date of Termination; except that in the event that participation in any such plan is permitted only by Executive is entitled during the payment period electing continued participation through COBRA, or if participation in any such plan would result in adverse tax consequences to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment periodthen assuming Executive timely makes an election under COBRA, the Company shall reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any COBRA premiums paid by Executive (for Executive and Executive’s dependents). Executive agrees that the period of coverage under such plans (or the period of reimbursement if participation is through COBRA) shall count against the plans’ obligation to provide continuation coverage pursuant to COBRA; and
(v) to the extent not theretofore paid or provided, any other amounts or benefits required to be obligated paid or provided or which Executive is eligible to pay receive under any subsequent such amountsplan, but program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall pay be hereinafter referred to as the “Other Benefits”).
(d) If Executive's estate (or such person or persons as ’s employment is terminated on account of a Change in Control Termination, subject to Section 6(e) below, Executive may designate in a written instrument signed by him and delivered shall be entitled to the Company prior to his death) either payments and benefits described in Section 6(c), contingent upon Executive’s execution of the Separation and Release Agreement, attached as Exhibit A, except that:
(i) amounts during the remainder of the payment period called for in Section 6(c)(i) shall be equal to one-half two (2) times the sum of Executive’s annual Base Salary plus Executive’s target annual bonus in effect immediately prior to the amounts which would have been paid to Executive but for his death or Date of Termination instead of two (2) times Executive’s Base Salary, less applicable payroll deductions;
(ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted all unvested performance-vested performance share unit or restricted stock unit grants shall be deemed satisfied at the publicly announced reference rate for commercial lending greater of Bank target or actual performance extrapolated as of America Illinois the Change in effect Control Termination through the end of the applicable performance period, provided that actual performance may only be extrapolated as of the Change in Control Termination if at least one year of the grant’s performance period has been completed as of the Change in Control Termination. Notwithstanding the foregoing, if the unvested units are subject to a stock price performance condition that is not satisfied at the date closing of notice to the Company of Change in Control, such election, with said amount to units shall not vest and shall be paid on a date no later than thirty forfeited by Executive.
(30iii) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (dtime period described in Section 6(c)(iv) shall cease in the event Executive breaches any be eighteen (18) months instead of his agreements in paragraph 7, 9 or 10 hereofone (1) year.
(e) If The Company shall have no obligation to make any of the Employment Period ends early payments, or deliver any of the benefits, in accordance with Section 6(c) or Section 6(d) if Executive declines to sign and return the Separation and Release Agreement, or revokes the Separation and Release Agreement or the Separation and Release Agreement does not become effective within the sixty (60) calendar day period after the Date of Termination. Notwithstanding any other provision of this Agreement, any payments to be made, or benefits to be delivered, under this Agreement (other than the payments required to be made by the Company pursuant to paragraph 5 hereof on account Sections 6(a) prior to Executive’s execution of the Separation and Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination, shall be accumulated and paid in a Termination by lump sum or delivered after Executive’s execution of the Separation and Release Agreement and the expiration of the applicable revocation period, without Executive with Advance Noticehaving elected to revoke same (except that, if such 60-day period spans more than one (1) calendar year, and the payments or benefits constitute deferred compensation subject to Section 409A, the Company payments shall make no further payments be paid, and the benefits delivered, in the subsequent calendar year).
(f) Executive is not required to Executive except as contemplated mitigate the amount of any payment or benefit provided for in (a) (i) and (ii) abovethis Agreement by seeking other employment or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (BlueLinx Holdings Inc.), Employment Agreement
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on -7- 8 account of Executive's death death, Retirement (provided such Retirement is not a Termination Following a Change of Control) or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, and such termination does not constitute a Termination Following a Change of Control, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid Employment Period ends (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments), payable at the times such amounts would have been paid; provided, however, that if Executive so chooses, in the event of Executive's death during the his sole discretion, such payment periodunder this subparagraph (d) shall be made in a lump sum. In addition, the Company shall not be obligated reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to pay any subsequent such amounts, but Executive (for Executive and his dependents) by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered subsequent to the Company prior to his death) either (i) amounts during the remainder end of the payment period equal Employment Period pursuant to one-half the requirements of COBRA as in effect on the amounts which would have been paid date of this Agreement. The Company shall make no further payments to Executive but for his death or except as contemplated in (a)(i), (ii) if so elected by the payee(sand (iii) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionabove. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, and such termination does not constitute a Termination Following a Change of Control, the Company shall make no further payments to Executive except as contemplated in (aa)(i), (ii) and (iii) above.
(i) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination Following a Change of Control, Executive shall be entitled to receive an amount equal to two times the sum of (A) Executive's annual base salary at the time of such termination (or, if higher, Executive's Reference Salary) and (B) Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs), payable at the times such amounts would have been paid; provided, however, that if Executive so chooses, in his sole discretion, such payment under this subparagraph (f)(i) shall be made in a lump sum. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such
(ii) aboveNotwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any bonus, stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would be an "Excess Parachute Payment," within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement is required pursuant to the preceding sentence shall be made at the expense of the Company, if requested by the Executive or the Company, by the Company's independent accountants. The fact that the Executive's right to payments or benefits may be reduced by reason of the limitations contained in this paragraph 6(f) shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this paragraph 6(f), the Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this paragraph 6(f). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Date of Termination, the Company may effect such reduction in any manner it deems appropriate.
(g) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite "prime rate" as quoted from time to time during the relevant period in the Midwest Edition of The Wall Street Journal. Such interest will be
(h) Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
Appears in 2 contracts
Samples: Employment Agreement (Penton Media Inc), Employment Agreement (Penton Media Inc)
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(i) payment equal to Executive amounts one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the amounts Executive would have received Target Bonus set forth in clause (i) of subparagraph 4(b) hereof for the fiscal year prior to the year of termination of Executive’s employment, payable in twelve equal monthly installments commencing six months after the Date of Termination;
(ii) continued participation in the Company’s medical and dental plans, on the same basis as salary (based on Executive's salary then active employees participate in effect orsuch plans, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which earlier of (without i) Executive’s eligibility for any extension thereofsuch coverage under another employer’s or any other medical or dental insurance plans or (ii) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee first anniversary of the Company, less such payments)Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(iii) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(iv) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subsection 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Employment Period ends on Date of Termination, regardless of the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof reason for any reasontermination of employment, Executive shall cease will be entitled to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which Base Salary that has accrued but is unpaid, and any annual bonus that has been earned but is unpaid, any reimbursable expenses which that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which that by their terms extend beyond termination of Executive's employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in paragraph 6, any Company severance pay program or policy), (iii) reimbursement for expenses as provided in Section 4(d), and (iv) reimbursement for any other amount(sbenefits to which Executive is entitled and has paid in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") payable pursuant (such reimbursement to be made upon Executive's written requests therefor from time to time). In addition, the Indemnification Agreement referenced in Section 4(g) shall survive any such termination in accordance with its terms. Except as specifically described in this subparagraph 6(a) and in the succeeding provisions subparagraphs of this paragraph 66 (under the circumstances described in those succeeding subparagraphs), from and after the Date of Termination Executive shall cease to have any rights to salary, bonus, expense reimbursements or other benefits from the Company.
(b) If the Employment Period ends pursuant to in accordance with paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof 5(b) on account of Executive's death Retirement death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubparagraph 6(a).
(c) If Subject to subparagraph 6(d), if the Employment Period ends early pursuant to in accordance with paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect5(b) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, or in the event that the Agreement expires due to the Company giving written notice under Section 5(a) or the Company otherwise declining to renew or extend this Agreement on terms (other than the duration of the Employment Period extension, which may be one year or more) that are at least as favorable as those contained herein (meaning without any of the changes enumerated in the definition of "Good Reason"), Executive shall be entitled to the following:
(A) if the Date of Termination occurs within the first 120 days of Executive's employment with the Company, severance payments equal to fifty percent (50%) of Executive's Base Salary for the then-current fiscal year, payable bi-weekly in installments based on the company's payroll practices as in effect on the Date of Termination (provided, however, that if the Termination without Cause or Termination for Good Reason occurs after a Change in Control, then the amount of the payments shall be equal to the amount provided in subclause (1)(B) of this subparagraph (c) notwithstanding the date the Employment Period ends); or (B) if the Date of Termination occurs more than 120 days after Executive is first employed by the Company, severance payments equal to one hundred percent (100%) of Executive's Base Salary for the then-current fiscal year, payable bi-weekly in installments based on the Company's payroll practices as in effect on the Date of Termination; plus
(2) continued participation in the Company's medical and dental plans, on the same basis (including cost) as active employees participate in such plans, until the earlier of (i) Executive's eligibility for any such coverage under another employer's or any other medical or dental insurance plans sponsored by a subsequent employer of Executive or (ii) the first anniversary of the Date of Termination; except that in the event that participation in any such plan is barred, the Company shall pay to Executive amounts on a monthly basis an amount that, following withholding for the application or imposition of any income or employment taxes, is equal to the amounts amount of any premiums paid by Executive would have received as salary to obtain benefits (based on Executive's salary then in effect or, if greater, Executive's Reference Salaryfor Executive and his dependents) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice benefits he is entitled to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that receive under the Company's payment obligations under this benefit plans.
(d) The Company shall cease make no payments in accordance with subparagraph 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Release Agreement; provided that this condition shall be excused if the terms of the release conflict with this Agreement or require Executive breaches to act illegally or take any of his agreements in paragraph 7, 9 or 10 hereof.position that is illegal
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Samples: Employment Agreement (PRG Schultz International Inc)
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 4 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, a prorated Bonus Compensation for the year of termination, not less than the Executive’s pro rata share of his average bonus paid over the prior three years, and any reimbursable expenses which have been incurred but are unpaid, unpaid as of the end of the Employment PeriodPeriod (all of which shall be paid within thirty (30) days of termination), (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive’s employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), (iv) any accumulations and benefits to which employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (iiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 65.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Executive's death Retirement or ’s death, Termination for DisabilityDisability or Retirement, the Executive or, in the event of death, his beneficiary (as identified to the Company in writing) shall be entitled to receive the following: (i) except in the case of the Executive’s death, a lump sum payment of three times the Executive’s then current base salary, but in no event less than $766,680 (ii) except in the case of the Executive’s death, a lump sum payment of three times the average of the Bonus Compensation paid to the Executive during the three (3) years prior to Executive’s death, Disability or Retirement, but in no event less than $1,030,000 (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (v) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (vi) at the Executive’s option, the Company shall make no further transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be liable for all payments to Executive except as contemplated in (a) (i) due on such policies, and (iivii) aboveimmediate vesting of Executive’s existing stock options.
(c) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Termination for Cause, the Company shall pay Executive (i) an amount equal to that amount Executive would have received as salary (based on Executive's salary ’s Base Salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's ’s termination of Executive's ’s employment or the date thirty (30) days after the Company's ’s notice to Executive of such termination, and (ii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan. The Company shall make no further payments to Executive, except as provided in Section 5(a) hereof.
(d) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay be entitled to Executive amounts receive the following: (i) a lump sum payment equal to five times that of the amounts Executive’s then current Base Salary, but in no event less than $1,277,800, (ii) a lump sum payment equal to five times the average of the Bonus Compensation paid to the Executive would have received as salary during the three (based on Executive's salary then 3) years prior to the termination date, but in effect not event less than $1,716,665, (iii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (iv) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if greaterlater, until his surviving spouse dies, (v) continued participation by each of Executive's Reference Salary) had ’s dependent children in the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to endCompany’s medical, dental and vision health plan, at the times such amounts would have been paid Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event vi) immediate vesting of Executive's death during ’s existing stock options, and (vii) at the payment periodExecutive’s option, the Company shall not transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be obligated liable for all payments due on such policies.
(e) If the Executive terminates his employment because of a Change in Control, the Executive shall be entitled to pay any subsequent such amountsreceive the following: (i) a lump sum payment equal to 2.99 times the sum of the Executive’s then current Base Salary, but in no event less than $764,124 (ii) a lump sum payment equal to 2.99 times the amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to the termination date, but in no event less than $1,026,565, (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (v) immediate vesting of Executive’s existing stock options, (vi) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (vii) at the Executive’s option, the Company shall pay transfer to the Executive the ownership of any and all life insurance policies insuring the Executive's estate ’s life that the Company has purchased and the Executive shall thereafter be liable for all payments due on such policies. Upon entitlement, all sums due hereunder will be payable in cash or by official bank check within thirty (30) days following termination of the Executive’s employment. Notwithstanding anything to the contrary contained herein, in the event that any portion of the payments or such benefits received or to be received by the Executive, together with any other payments received by him, whether paid or payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any other person or persons entity, would cause, either directly or indirectly, an “excess parachute payment” to exist within the meaning of said Section 280G of the Internal Revenue Code, the payments hereunder shall be reduced until no portion of the payments would fail to be deductible by reason of being an “excess parachute payment”. In the event that any dispute arises as Executive may designate in a written instrument signed to whether an “excess parachute payment” exists, the appropriate calculations shall be made by him the Company’s regularly employed independent public auditors and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company in writing within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date for payment of notice such severance payment, and the Company will warrant to the Company Executive the accuracy of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in calculations and the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofinformation on which they are based.
(ef) If Executive shall not be required to mitigate the Employment Period ends early pursuant amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
(g) Notwithstanding anything herein to paragraph 5 hereof on account the contrary, with respect to any right to a payment that constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code, any payment to be made upon the Executive’s termination of employment shall be delayed until the first day of the seventh month following the Participant’s termination of employment if the Participant is a Termination by Executive “specified employee” within the meaning of Section 409A of the Code and the Company’s 409A Policy, if any.
(h) Notwithstanding anything herein to the contrary, with Advance Notice, the Company shall make no further payments respect to Executive except as contemplated in (a) any right to a payment that (i) is to be made under this Section 5 based on the continued participation by Executive, his spouse and each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, and (ii) aboveconstitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code, any such payment shall be made in accordance with Treasury Regulation §1.409A-3(i)(1)(iv). Expenses eligible for reimbursements and in-kind benefits shall be determined based on the coverage provided by the relevant plan maintained by the Company for eligible employees, and any payments shall be made only for the period or periods specified in this Section 5. Any amount of expenses eligible for reimbursement or in-kind benefit provided during a taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year. The reimbursement of any eligible expense shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred. The right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in Section 6(c) below, at the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease will be entitled to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which Base Salary that has accrued but is unpaid, and any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any properly reimbursable expenses which that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond accrued before the termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.4
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's ’s death Retirement or Termination for Disability, in addition to the payments contemplated in Section 6(a), the Company shall will pay Executive the compensation set forth in Section 6(c)(ii) below and will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) Section 6(a). If Executive’s employment terminates on account of Executive’s Voluntary Termination or Termination for Cause the Company will provide no further benefit and (ii) abovemake no further payments to Executive except as contemplated in Section 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall pay to Executive amounts equal in addition to the amounts benefits and payments described in Section 6(a) be entitled to the following: (i) The Company will pay Executive salary continuance at Executive’s regular base salary level of $475,000 (or any higher base salary level in effect on the Date of Termination), less applicable payroll deductions, for one year following the Date of Termination, through direct deposit to Executive’s currently designated bank account or any other bank account Executive may designate. These payments in the total gross amount of $475,000 (or any higher base salary level in effect at the time of Executive’s Date of Termination) shall be referred to herein as “Separation Pay.” Separation Pay will be paid on the Company’s normal payroll dates beginning on the first payroll date on or after the Date of Termination, provided that no amount will be paid until the first pay day following the Effective Date of this Agreement, at which time any missed payments will also be paid; (ii) a pro-rata portion of Executive’s annual bonus as set forth in Section 4(c) for the performance year in which Executive’s termination occurs (the “Pro-Rata Bonus Amount”). The Pro-Rata Bonus Amount shall be determined by multiplying the amount Executive would have received as salary (based on Executive's salary then in effect orupon performance had employment continued through the end of the performance year and the performance criteria had been achieved at target by a fraction, if greater, Executive's Reference Salary) had the Employment Period remained in effect until numerator of which is the date on number of days Executive was employed by the Company during the performance year and the denominator of which (without any extension thereof) it was then scheduled to end, at is the times such amounts would have been paid (total number of days in the event Executive is entitled during performance year. Subject to delay if required under Section 11(a), the payment period to any payments under any disability benefit plan or the like Pro-Rata Bonus Amount shall be paid in which Executive has participated as an employee of the Companya lump sum, less such payments); providedapplicable payroll deductions, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following after the date Date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.Termination; 5
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) his 2014 Guaranteed Bonus as provided in Section 4(c) (unless paid before such Date of Termination), (iii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iv) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this Section 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveSection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall in addition to the Company shall pay benefits and payments described in Section 6(a) be entitled to Executive amounts the following:
(i) a payment equal to two (2) times the Executive’s annual Base Salary in effect immediately prior to the Date of Termination (the “Severance Amount”). The Severance Amount up to an amount equal to the amounts Executive would have received as salary Separation Pay shall be paid in a lump sum no later than ten (10) business days after the Date of Termination. The Severance Amount in excess of the Separation Pay, if any, shall be paid in a lump sum on the earlier to occur of the first business day of the seventh month after the Date of Termination or the tenth (10th) business day following the date of Executive’s death;
(ii) all unvested time-vested restricted stock grants shall automatically vest and become non-forfeitable;
(iii) all unvested performance-vested performance share or restricted stock grants shall remain outstanding and shall vest and become non-forfeitable in accordance with their terms and based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee actual performance of the Company; and
(iv) continued participation in the Company’s medical and dental plans, less on the same basis as active employees participate in such payments)plans, until the earlier of (1) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (2) the date that is one (1) year after the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to obtain benefits (for Executive and his dependents) equivalent to the benefits he is entitled to receive under the Company’s benefit plans. Executive agrees that the period of coverage under such plans (or the period of reimbursement if participation is barred) shall count against the plans’ obligation to provide continuation coverage pursuant to COBRA;
(v) to the extent not theretofore paid or provided, any other amounts or benefits required to be obligated paid or provided or which the Executive is eligible to pay receive under any subsequent such amountsplan, but program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall pay be hereinafter referred to as the “Other Benefits”).
(d) If Executive's estate (or such person or persons as ’s employment is terminated on account of a Change in Control Termination, subject to Section 6(e) below, Executive may designate in a written instrument signed by him and delivered shall be entitled to the Company prior to his deathpayments and benefits described in Section 6(c) either except that:
(i) amounts during the remainder of the payment period called for in Section 6(c)(i) shall equal to one-half three (3) times the Executive’s annual Base Salary in effect immediately prior to the Date of the amounts which would have been paid to Executive but for his death or Termination instead of two (2) times such Base Salary, and
(ii) if so elected by the payee(s) by written notice to the Company within the time period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois described in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (dSection 6(c)(iv) shall cease in the event Executive breaches any be eighteen (18) months instead of his agreements in paragraph 7, 9 or 10 hereofone (1) year.
(e) If The Company shall have no obligation to make any of the Employment Period ends early payments, or deliver any of the benefits, in accordance with Section 6(c) (other than clause (v) therein) if Executive declines to sign and return a Release Agreement, or revokes the Release Agreement or the Release Agreement does not become effective, within the sixty (60) calendar days after the Date of Termination. Notwithstanding any other provision of this Agreement, any payments to be made, or benefits to be delivered, under this Agreement (other than the payments required to be made by the Company pursuant to paragraph 5 hereof on account Sections 6(a) and 6(c)(v) prior to Executive’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination, shall be accumulated and paid in a Termination by lump sum or delivered after Executive’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive with Advance Noticehaving elected to revoke same (except that, if such 60-day period spans more than one (1) calendar year, and the payments or benefits constitute deferred compensation subject to Section 409A, the Company payments shall make no further payments be paid, and the benefits delivered, in the subsequent calendar year).
(f) Executive is not required to Executive except as contemplated mitigate the amount of any payment or benefit provided for in (a) (i) and (ii) abovethis Agreement by seeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in any option theretofore granted to Executive or in the SERP or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"), and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement (provided such Retirement is not a Termination Following a Change of Control) or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i), (ii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a) (i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, and such termination does not constitute a Termination Following a Change of Control, the Company shall pay to Executive amounts a lump sum payment equal to the amounts Executive would have received as salary (based on three times Executive's base salary then in effect at the time of such termination (or, if greaterhigher, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period. In addition, the Company shall not be obligated reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to pay any subsequent such amounts, but Executive (for Executive and his dependents) by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered subsequent to the Company prior to his death) either (i) amounts during the remainder end of the payment period equal Employment Period pursuant to one-half the requirements of COBRA as in effect on the amounts which would have been paid date of this Agreement. The Company shall make no further payments to Executive but for his death or except as contemplated in (a)(i), (ii) if so elected by the payee(sand (iii) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionabove. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, and such termination does not constitute a Termination Following a Change of Control, the Company shall make no further payments to Executive except as contemplated in (a) (i), (ii) and (iiiii) above.
(i) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination Following a Change of Control, Executive shall be entitled to receive the following:
(A) For a period of three years following the date of termination, Executive's base salary at the time of such termination (or, if higher, Executive's Reference Salary) payable at the times such amounts would have been paid; PROVIDED, HOWEVER, that if Executive so chooses, in his sole discretion, such payment under this subparagraph (f)(i)(A) shall be made in a lump sum;
(B) A lump sum payment equal to Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs);
(C) If Executive's employment is terminated after July 1 of the then-current year, an additional amount equal to the product of (x) Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs) multiplied by (y) a fraction, the numerator of which shall be the number of months that have elapsed, on the day of termination, during the then-current year (rounded up to the nearest full month) and the denominator of which shall be 12; and
(D) For a period of one year following the date of termination, Executive shall be entitled to be a full participant in, and shall be entitled to the benefits provided under, the Company's Standard Executive Benefits Package (but shall not be entitled to stock option, performance share, performance unit, stock purchase, stock appreciation or similar equity-based compensatory benefit awards) and the additional benefits set forth in Section 3(f) hereof at the time of such termination (or, if higher, for the preceding year or the year in which the Change of Control occurs). If, however, Executive is not eligible to participate in the benefits as set forth in the preceding sentence, the Company shall reimburse Executive, on a monthly basis (net after taxes on the receipt of such reimbursement), for any premiums or other fees paid by Executive to obtain benefits (for Executive and his dependents) equivalent to the Standard Executive Benefits Package and the additional benefits set forth in Section 3(f). Notwithstanding the foregoing or any other provision of this Agreement, (A) for the purpose of determining the period of continuation coverage to which the Executive or any of his dependents is entitled pursuant to the requirements of COBRA, the Executive's "qualifying event," subject to the requirements of applicable plans, will be the termination of the one-year period set forth above in this subparagraph (f)(i)(D) and the Executive will be considered to have remained actively employed on a full time basis through that date and (B) the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executives and his dependents) by the Company pursuant to the requirements of COBRA as in effect on the date of this Agreement.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 4 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, unpaid and any reimbursable expenses which have been incurred but are unpaid, unpaid as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive’s employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), (iv) any accumulations and benefits to which employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (iiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 65.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Executive's death Retirement or ’s death, Termination for DisabilityDisability or Retirement, the Executive or, in the event of death, his beneficiary (as identified to the Company in writing) shall make no further payments be entitled to Executive except as contemplated in (a) receive the following: (i) and payment of the Executive’s then current base salary for a period of three (3) years following the termination date, payable on a monthly basis, (ii) abovethree (3) annual payments on the anniversary of the termination date, each in an amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to Executive’s death, Disability or Retirement, (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (v) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, and (vi) immediate vesting of Executive’s existing stock options.
(c) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Termination for Cause, the Company shall pay Executive (i) an amount equal to that amount Executive would have received as salary (based on Executive's salary ’s Base Salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's ’s termination of Executive's ’s employment or the date thirty (30) days after the Company's ’s notice to Executive of such termination, and (ii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan. The Company shall make no further payments to Executive, except as provided in Section 5(a) hereof.
(d) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay be entitled to Executive amounts receive the following: (i) payment of the Executive’s then current Base Salary for a period of five (5) years following the termination date, payable on a monthly basis, (ii) five (5) annual payments on the anniversary of the termination date, each in an amount equal to the amounts average of the Bonus Compensation paid to the Executive would have received as salary during the three (based on Executive's salary then 3) years prior to the termination date, (iii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (iv) continued participation by Executive and his spouse in effect the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if greaterlater, until his surviving spouse dies, (v) continued participation by each of Executive's Reference Salary) had ’s dependent children in the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to endCompany’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, and (vi) immediate vesting of Executive’s existing stock options.
(e) If the Executive terminates his employment because of a Change in Control, the Executive shall be entitled to receive the following: (i) a lump sum payment equal to 2.99 times such amounts would have been the sum of the Executive’s then current Base Salary, (ii) a lump sum payment equal to 2.99 times the amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to the termination date, (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (v) immediate vesting of Executive’s existing stock options, and (vi) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan. Upon entitlement, all sums due hereunder will be payable in cash or by official bank check within thirty (30) days following termination of the Executive’s employment. Notwithstanding anything to the contrary contained herein, in the event Executive is entitled during the payment period to that any payments under any disability benefit plan or the like in which Executive has participated as an employee portion of the Companypayments or benefits received or to be received by the Executive, less such payments); providedtogether with any other payments received by him, howeverwhether paid or payable pursuant to the terms of this Agreement or any other plan, that in arrangement or agreement with the Company or any other person or entity, would cause, either directly or indirectly, an “excess parachute payment” to exist within the meaning of said Section 280G of the Internal Revenue Code, the payments hereunder shall be reduced until no portion of the payments would fail to be deductible by reason of being an “excess parachute payment”. In the event of Executive's death during the payment periodthat any dispute arises as to whether an “excess parachute payment” exists, the Company appropriate calculations shall not be obligated to pay any subsequent such amounts, but made by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him Company’s regularly employed independent public auditors and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company in writing within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date for payment of notice such severance payment, and the Company will warrant to the Company Executive the accuracy of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in calculations and the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofinformation on which they are based.
(ef) If Executive shall not be required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, subject to subsection 6(d) below, Executive shall be entitled to the Company shall pay following:
(i) payment equal to Executive amounts one (1) times the Executive’s annual Base Salary in effect immediately prior to the Date of Termination (the “Severance Amount”). The Severance Amount up to an amount equal to the amounts Separation Pay shall be paid in installments of one-twelfth (1/12) of the Severance Amount (or such lesser amount of the Separation Pay as remains to be paid) on each monthly anniversary of the Date of Termination until paid in full. The Severance Amount in excess of the Separation Pay, if any, shall be paid in twelve (12) equal monthly installments commencing on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death;
(ii) a pro-rata portion of Executive’s annual bonus as set forth in Section 4(b)(i) for the performance year in which Executive’s termination occurs, which pro-rata bonus shall be payable at the time that annual bonuses are paid to other senior executives. The pro-rata bonus shall be determined by multiplying the amount Executive would have received as salary based upon performance had employment continued through the end of the performance year by a fraction, the numerator of which is the number of days Executive was employed by the Company during the performance year and the denominator of which is the total number of days in the performance year;
(iii) all unvested time-vested restricted stock grants shall automatically vest and become non-forfeitable;
(iv) all unvested performance-vested performance share or restricted stock grants shall remain outstanding and shall vest and become non-forfeitable in accordance with their terms and based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee actual performance of the Company;
(v) up to $25,000 in aggregate outplacement services to be used within one year of the Date of Termination, less the scope and provider of which shall be selected by Executive from a list maintained by the Vice President, Human Resources; and
(vi) continued participation in the Company’s medical and dental plans, on the same basis as active employees participate in such payments)plans, until the earlier of (1) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (2) the date that is one (1) year after the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) shall count against the plans’ obligation to provide continuation coverage pursuant to COBRA;
(vii) to the extent not theretofore paid or provided, any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
(d) The Company shall have no obligation to make any of the payments, or deliver any of the benefits, in accordance with subsection 6(c) above (other than clause (vii) therein) if Executive declines to sign and return a Release Agreement, or revokes the Release Agreement or the Release Agreement does not become effective, within the 60 days after the date Date of Termination. Notwithstanding any other provision of this Agreement, any payments to be made, or benefits to be delivered, under this Agreement (other than the payments required to be made by the Company pursuant to subsections 6(a) and 6(c)(vii) above) prior to Executive's death’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination, shall be accumulated and paid in a lump sum amount equivalent or delivered after Executive’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same (except that, if such 60-day period spans more than one (1) calendar year, and the discounted present value of such reduced amountspayments or benefits constitute deferred compensation subject to Section 409A, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at payments shall be paid, and the date of notice to the Company of such electionbenefits delivered, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofsubsequent calendar year).
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in Section 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any properly reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this Section 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's ’s death Retirement or Termination for Disability, in addition to the payments contemplated in Section 6(a), the Company shall will pay Executive the compensation set forth in Section 6(c)(ii) below and will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) Section 6(a). If Executive’s employment terminates on account of Executive’s Voluntary Termination or Termination for Cause the Company will provide no further benefit and (ii) above.make no further payments to Executive except as contemplated in Section 6(a). 4
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall pay to Executive amounts equal in addition to the amounts benefits and payments described in Section 6(a) be entitled to the following: (i) The Company will pay Executive salary continuance at Executive’s regular base salary level of $450,000 (or any higher base salary level in effect on the Date of Termination), less applicable payroll deductions, for one year following the Date of Termination, through direct deposit to Executive’s currently designated bank account or any other bank account Executive may designate. These payments in the total gross amount of $450,000 (or any higher base salary level in effect at the time of Executive’s Date of Termination) shall be referred to herein as “Separation Pay.” Separation Pay will be paid on the Company’s normal payroll dates beginning on the first payroll date on or after the Date of Termination, provided that no amount will be paid until the first pay day following the Effective Date of this Agreement, at which time any missed payments will also be paid; (ii) a pro-rata portion of Executive’s annual bonus as set forth in Section 4(c) for the performance year in which Executive’s termination occurs (the “Pro-Rata Bonus Amount”). The Pro-Rata Bonus Amount shall be determined by multiplying the amount Executive would have received as salary (based on Executive's salary then in effect orupon performance had employment continued through the end of the performance year and the performance criteria had been achieved at target by a fraction, if greater, Executive's Reference Salary) had the Employment Period remained in effect until numerator of which is the date on number of days Executive was employed by the Company during the performance year and the denominator of which (without any extension thereof) it was then scheduled to end, at is the times such amounts would have been paid (total number of days in the event Executive is entitled during performance year. Subject to delay if required under Section 11(a), the payment period to any payments under any disability benefit plan or the like Pro-Rata Bonus Amount shall be paid in which Executive has participated as an employee of the Companya lump sum, less such payments); providedapplicable payroll deductions, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following after the date Date of notice to Termination; (iii) In the Company event a termination of such election. It is expressly understood that the Company's payment obligations employment under this Section 6(c) takes place on or before April 1, 2020, an amount equal to two million dollars (d) $2,000,000), which shall cease in be reduced by the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments following compensation and benefits provided to Executive except as contemplated in between the Effective Date and the Date of Termination: (a1) Base Salary; (i2) and (ii) above.Annual Bonus;
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) (but only to the extent provided in any option theretofore granted to Executive or in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment and employment, (iii) any benefits to which Executive is entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and (iv) any other amount(samounts(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i), (ii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay amounts to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) or, if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, shall pay to such payee(s) a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the date of this Agreement. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i), (ii) and (iiiii) above.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on and (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the date on extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in paragraph 6, any Company severance pay program or policy). Except as specifically described in this subparagraph 6(a) and in the succeeding subparagraphs of this paragraph 6 (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereofunder the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus bonus, expense reimbursements or other benefits from the Company. The Company will pay (if anydirectly or through a subsidiary) or benefits other than: the amounts set forth in (i) above to Executive in a lump sum as soon as administratively practicable after Executive’s Date of Termination; provided, however, that if payment of any salary which has accrued but is unpaidsuch amount at such time would result in a prohibited acceleration under Section 409A of the Code, and any expenses which then such amount shall be paid at the time the amount would have been incurred but are unpaidpaid under the applicable plan, as of the end of the Employment Periodpolicy, (ii) (but only program or arrangement relating to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6such amount absent such prohibited acceleration.
(b) If the Employment Period ends pursuant to in accordance with paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement ’s death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive except as contemplated in subparagraph 6(a) or as provided in the following sentence. Subject to paragraphs 11 and 20, if the Employment Period ends in accordance with paragraph 5 on account of Executive’s death or Disability, Executive shall be entitled to a lump sum payment on the first business day that occurs following thirty (a30) days after the Date of Termination in an amount equal to Executive’s Average Annual Compensation (i) as defined below), if the Date of Termination on account of Executive’s death or Disability occurs before all stock options, restricted stock, restricted stock units, stock appreciation rights, performance units or other equity awards that have been first granted to Executive after the Effective Date are not all fully vested and nonforfeitable (ii) abovenot counting as a forfeiture for this purpose any stated expiration date for the awards); in other words, if Executive dies or incurs a Disability before all such awards that have been first granted to Executive after the Effective Date are not all fully vested and nonforfeitable, Executive shall be entitled to the lump sum payment described herein.
(c) If Subject to subparagraph (2) and paragraphs 11 and 20, if the Employment Period ends early pursuant to in accordance with paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay to Executive amounts equal be entitled to the amounts Executive would have received as salary following:
(based on Executive's salary then in effect or, if greater, Executive's Reference Salary1) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to payment on the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than first business day that occurs following thirty (30) days following after the date Date of notice Termination in an amount equal to two (2) times Executive’s Average Annual Compensation (for purposes hereof, “Average Annual Compensation” means (x) the Company average of such election. It is expressly understood that Executive’s Base Salary in effect for the Company's payment obligations under this (d) shall cease final two fiscal years in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account (including the fiscal year in which the Date of a Termination by Executive with Advance Noticeoccurs), plus (y), the Company shall make no further payments to Executive except as contemplated average of the actual annual bonuses paid or payable in respect of the two (a2) (i) and (ii) above.full fiscal years immediately preceding the fiscal year in which the Date of Termination occurs); and
Appears in 1 contract
Samples: Employment Agreement (PRG Schultz International Inc)
Post-Employment Period Payments. (a) If At the end of the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) equity awards, expense reimbursements or other benefits other than: and Executive shall be entitled to (i) any salary Base Salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company and excluding, except as hereinafter provided in subparagraph 6(b), any severance pay program or policy of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"). In addition, Executive shall be entitled to the succeeding provisions of this paragraph 6additional benefits and amounts described in subparagraph 6(b), in the circumstance described in such subparagraph.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Without Cause or a Termination by By Executive for For Good Reason, the Company shall continue to pay to Executive amounts equal her Base Salary at the time of such termination for a period of:
(i) eighteen (18) months following such termination if the termination occurs prior to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee third anniversary of the CompanyEffective Date, less and
(ii) one (1) year following such payments); provided, however, that in termination if the event termination occurs on or after the third anniversary of Executive's death during the payment periodEffective Date. In addition, the Company shall not be obligated make a lump sum payment to pay any subsequent such amounts, but Executive in an amount equal to the Company shall pay to product of Executive's estate (or such person or persons as Executive may designate in Target Bonus Amount, multiplied by a written instrument signed by him and delivered to fraction, the Company prior to his death) either (i) amounts during numerator of which is the remainder number of days which have elapsed from January 1 of the payment period equal calendar year in which the Termination Without Cause or a Termination By Executive For Good Reason occurs through the date of such termination, and the denominator of which is 365. Further, Executive shall be entitled to one-half continue to participate, at the Company's cost, in the Company's medical, dental, disability and life insurance plans until the earlier of the amounts which would have been paid to Executive but (A) Executive's eligibility for his death any such coverage under another employer's or any other medical, dental or life insurance plans or (iiB) if so elected by one (1) year following the payee(s) by written notice to the Company within termination of Executive's employment. Executive agrees that the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent coverage under such plans shall count against such plans' obligation to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice provide continuation coverage pursuant to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionCOBRA. It is expressly understood that the Company's payment obligations and Executive's participation rights under this subparagraph (db) shall cease in the event Executive breaches any of his the agreements in paragraph 7, 9 or 10 7 hereof.
(ec) If Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise. Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.Agreement - Xxxxx-Xxxxx
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in subsection 6(c) below, at the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement or ’s death, Disability, Voluntary Termination, Termination for DisabilityCause or the end of the Employment Period in accordance with subsection 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(i) payment equal to Executive amounts one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the amounts Executive Target Bonus set forth in clause (iii) of subsection 4(c) hereof, payable in twelve equal monthly installments commencing on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death;
(ii) automatic vesting of all unvested restricted stock grants and performance share awards effective as of the Date of Termination;
(iii) a lump sum payment, payable on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death, in cash in an amount equal to the contributions the Company would have received as made (excluding any salary reduction contributions pursuant to an election of the Executive) for the benefit of the Executive to the Company’s qualified salaried 401(k) plan (based on Executive's salary then in effect or, if greater, Executive's Reference Salarythe Company is making matching contributions or other contributions to the salaried 401(k) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, plan at the times such amounts would have been paid time of the Executive’s termination), assuming (in i) the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated continued as an employee of the Company for a period of one year beginning on the Executive’s Date of Termination, and (ii) the Executive during such period contributed six percent of his base salary (as in effect immediately prior to the Date of Termination) to the 401(k) plan;
(iv) continued participation in the Company’s medical and dental plans, less on the same basis as active employees participate in such payments)plans, until the earlier of (i) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (ii) the first anniversary of the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(v) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(vi) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subsection 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the Release Agreement. In no event Executive breaches shall the Release Agreement release any of his agreements claim for indemnification by the Company or amounts and benefits set forth in paragraph 7, 9 or 10 subsection 6(a) hereof.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement (provided such Retirement is not a Termination Following a Change of Control) or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, and such termination does not constitute a Termination Following a Change of Control, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid Employment Period ends (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments), payable at the times such amounts would have been paid; providedPROVIDED, howeverHOWEVER, that if Executive so chooses, in the event of Executive's death during the his sole discretion, such payment periodunder this subparagraph (d) shall be made in a lump sum. In addition, the Company shall not be obligated reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to pay any subsequent such amounts, but Executive (for Executive and his dependents) by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered subsequent to the Company prior to his death) either (i) amounts during the remainder end of the payment period equal Employment Period pursuant to one-half the requirements of COBRA as in effect on the amounts which would have been paid Effective Date. The Company shall make no further payments to Executive but for his death or except as contemplated in (a)(i), (ii) if so elected by the payee(sand (iii) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionabove. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, and such termination does not constitute a Termination Following a Change of Control, the Company shall make no further payments to Executive except as contemplated in (aa)(i), (ii) and (iii) above.
(i) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination Following a Change of Control, Executive shall be entitled to receive an amount equal to two times the sum of (A) Executive's base salary at the time of such termination (or, if higher, Executive's Reference Salary) and (B) Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs), payable at the times such amounts would have been paid; PROVIDED, HOWEVER, that if Executive so chooses, in his sole discretion, such payment under this subparagraph (f)(i) shall be made in a lump sum. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the Effective Date.
(ii) aboveNotwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any bonus, stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would be an "Excess Parachute Payment," within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement is required pursuant to the preceding sentence shall be made at the expense of the Company, if requested by the Executive or the Company, by the Company's independent accountants. The fact that the Executive's right to payments or benefits may be reduced by reason of the limitations contained in this paragraph 6(f) shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this paragraph 6(f), the Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this paragraph 6(f). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Date of Termination, the Company may effect such reduction in any manner it deems appropriate.
(g) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite "prime rate" as quoted from time to time during the relevant period in the Midwest Edition of THE WALL STREET JOURNAL. Such interest will be payable as it accrues on demand. Any change in such prime rate will be effective on and as of the date of such change.
(h) Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, (ii) any Annual Bonus that has been earned for the calendar year preceding the calendar year in which termination occurs but is unpaid, (iii) a pro-rata portion of Executive's Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such Annual Bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that Executive is employed by the Company and the denominator of which is 365), payable at the same time Annual Bonuses for such year are paid to other senior executives of the Company, (iv) any reimbursable expenses that have been incurred but are unpaid, (v) pay for any vacation days that have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period ends on Period, and (vi) any plan benefits that by their terms extend beyond termination of Executive's employment (but only to the date on extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy). Except as specifically described in this Section 6(a) and in the succeeding subparagraphs of this Section 6 (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereofunder the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus bonus, expense reimbursements or other benefits from the Company. The Company will pay (if anydirectly or through a subsidiary) or benefits other than: the amounts set forth in subclauses (i) through (v) above to Executive in a lump sum as soon as administratively practicable after Executive's Date of Termination but no later than is required by applicable law; provided, however, that if payment of any salary which has accrued but is unpaidsuch amount at such time would result in a prohibited acceleration under Section 409A of the Internal Revenue Code of 1986, and any expenses which as amended (the "Code"), then such amount shall be paid at the time the amount would have been incurred but are unpaidpaid under the applicable plan, as of the end of the Employment Periodpolicy, (ii) (but only program or arrangement relating to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6such amount absent such prohibited acceleration.
(b) If the Employment Period ends pursuant to paragraph in accordance with Section 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive pursuant to this Agreement except as contemplated in (aSection 6(a) (i) and (ii) aboveexcluding, in the event of a Termination for Cause, any amount payable pursuant to Section 6(a)(iii)).
(c) If In addition to the payments set forth in Section 6(a), subject to Section 12, if the Employment Period ends early pursuant to paragraph in accordance with Section 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall, subject to Section 6(d) below and Executive's continued compliance with the obligations in Section 7 hereof, be entitled to the following:
(i) severance benefits equal to (A) one (1) times Executive's Base Salary for the year in which the Date of Termination occurs (the "Termination Year Salary"). less applicable withholdings and deductions, paid in equal installments over the twelve (12) months following the effective date of such termination pursuant to the Company's payroll practices, plus (B) an amount equal to the Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred (together with the Termination Year Salary, the "Cash Severance Benefits"), payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would be paid had the performance hurdles been met) to other senior executives of the Company (for the avoidance of doubt the payment in this clause (B) shall not be contingent on any performance goals or bonus criteria). Notwithstanding any of the foregoing, however, to the extent permitted by Section 409A of the Code, if the Company elects to extend the Restricted Period (as defined below) through the twenty-four (24)-month period following the Date of Termination, the Company shall pay to Executive amounts Executive, instead of the Cash Severance Benefits, severance benefits equal to (X) two (2) times Executive's Termination Year Salary, less applicable withholdings and deductions, paid in equal installments over the twenty-four (24) months following the effective date of such termination pursuant to the Company's payroll practices, plus (Y)(I) an amount equal to the amounts Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred, payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would have be paid had the performance hurdles been met) to other senior executives of the Company, and (II) an amount equal to the Annual Bonus which Executive received as salary for the year prior to the year in which the Date of Termination occurred, payable at the same time the Annual Bonuses for the second year following the year in which the Date of Termination occurred are paid (based or would be paid had the performance hurdles been met) to other senior executives of the Company; provided that for the avoidance of doubt the payments in this clause (Y) shall not be contingent on any performance goals or bonus criteria; and
(ii) subject to (A) Executive's salary then in effect ortimely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, if greateras amended ("COBRA"), and (B) Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, continued copayment of premiums at the times such amounts would have been paid (in the event same level and cost to Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which as if Executive has participated as was an employee of the Company (excluding, for purposes of calculating cost, an employee's ability to pay premiums with pre-tax dollars), continued participation in the Company's medical and dental plans, less on the same basis (including cost) as active employees participate in such payments)plans, until the earlier of (I) Executive's eligibility for any such coverage under another employer's medical or dental insurance plans; provided, however, or (II) the second anniversary of the Date of Termination; except that in the event that participation in any such plan is barred or would adversely affect the tax status of Executive's death during the payment periodplan pursuant to which the coverage is provided, the Company shall not be obligated pay the premium required to pay any subsequent continue such amountscoverage pursuant to COBRA (the "COBRA Premium") and to the extent such COBRA period expires, but the Company shall pay the lesser of (x) the COBRA Premium and (y) the premium required to Executive's estate continue such coverage after COBRA coverage is converted to individual plan(s).
(or such person or persons d) The Company shall make no payments in accordance with Section 6(c) if Executive declines to sign and return a Release Agreement in substantially the same form that is attached hereto as Executive may designate in a written instrument signed by him Appendix 2. Such Release Agreement shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination. No payments shall be made in accordance with Section 6(c) until the Company prior to his death) either (i) amounts during the remainder expiration of the revocation period provided for in the Release Agreement. The first installment payment period equal to one-half following the expiration of the revocation period shall include all amounts which that would otherwise have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within during the period beginning on the Date of sixty (60) days after Termination and ending on the date of the first installment payment (for the avoidance of doubt, without interest). Notwithstanding anything to the contrary contained or implied in this Section 6, if the 60th day following the Date of Termination falls in a different calendar year than the Date of Termination, then notwithstanding the actual date on which Executive signs and returns the Release Agreement (and the Release Agreement becomes no longer subject to revocation), payments under Section 6(c) shall not commence prior to the 60th day following the Date of Termination. In addition, notwithstanding the foregoing, nothing in the Release Agreement will require Executive to release any vested claims or rights he has against the Company, or Company's obligations to Executive, arising out of or relating to any vested employee benefits, including vested equity awards, to which Executive is entitled and that exist prior to the signing of the Release Agreement. This limitation in the Release Agreement includes, but is not limited to, Executive's deathseverance payments, a lump sum amount equivalent rights to the discounted present value indemnification and advancement of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois expenses as set forth herein and in effect at the date of notice to the Company of such electionGroup's governing documents, with said amount vested rights regarding profit interests, equity options, restricted equity units, stock appreciation rights, equity previously awarded to be paid on a date no later than thirty (30Executive, equity incentives, 401(k) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7retirement plan or other benefits, 9 including without limitation health, medical, life, disability and other insurance plans or 10 hereofprograms or fringe benefits.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on account the part of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) abovehereunder or otherwise.
Appears in 1 contract
Samples: Employment Agreement (Aveanna Healthcare Holdings, Inc.)
Post-Employment Period Payments. (a) If At the end of the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) equity awards, expense reimbursements or other benefits other than: and Executive shall be entitled to (i) any salary Base Salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company and excluding, except as hereinafter provided in subparagraph 6(b), any severance pay program or policy of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"). In addition, Executive shall be entitled to the succeeding provisions of this paragraph 6additional benefits and amounts described in subparagraph 6(b), in the circumstance described in such subparagraph.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Without Cause or a Termination by By Executive for For Good Reason, the Company shall continue to pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, his Base Salary at the times time of such amounts would have been paid termination for a period of six (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less 6) months following such payments); provided, however, that in the event of Executive's death during the payment periodtermination. In addition, the Company shall not be obligated make a lump sum payment to pay any subsequent such amounts, but Executive in an amount equal to the Company shall pay to product of Executive's estate (or such person or persons as Executive may designate in Target Bonus Amount, multiplied by a written instrument signed by him and delivered to fraction, the Company prior to his death) either (i) amounts during numerator of which is the remainder number of days which have elapsed from January 1 of the payment period equal calendar year in which the Termination Without Cause or a Termination By Executive For Good Reason occurs through the date of such termination, and the denominator of which is 365. Further, Executive shall be entitled to one-half continue to participate, at the Company's cost, in the Company's medical, dental, disability and life insurance plans until the earlier of the amounts which would have been paid to Executive but (A) Executive's eligibility for his death any such coverage under another employer's or any other medical, dental or life insurance plans or (iiB) if so elected by six (6) months following the payee(s) by written notice to the Company within termination of Executive's employment. Executive agrees that the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent coverage under such plans shall count against such plans' obligation to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice provide continuation coverage pursuant to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionCOBRA. It is expressly understood that the Company's payment obligations and Executive's participation rights under this subparagraph (db) shall cease in the event Executive breaches any of his the agreements in paragraph 7, 9 or 10 7 hereof.
(ec) If Executive shall not be required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in paragraph 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subparagraph 6(a) it is then scheduled to end pursuant to and in the succeeding subparagraphs of this paragraph 5 hereof6 (under the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement or ’s death, Disability, Voluntary Termination, Termination for DisabilityCause or the end of the Employment Period in accordance with subparagraph 5(a) due to the Executive giving the Company written notice of nonrenewal, the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubparagraph 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(1) payment equal to Executive amounts one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the amounts Executive Target Bonus set forth in clause (iii) of subparagraph 4(c) hereof, payable in twelve equal monthly installments commencing six months after the Date of Termination;
(2) if the termination occurs within the first three years of the Executive’s employment with the Company, the 60,000 shares of restricted stock issued upon Executive’s hiring shall immediately vest;
(3) a lump sum payment, payable six months after the Date of Termination, in cash in an amount equal to the contributions the Company would have received as made (excluding any salary reduction contributions pursuant to an election of the Executive) for the benefit of the Executive to the Company’s qualified salaried 401(k) plan (based on Executive's salary then in effect or, if greater, Executive's Reference Salarythe Company is making matching contributions or other contributions to the salaried 401(k) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, plan at the times such amounts would have been paid time of the Executive’s termination), assuming (in i) the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated continued as an employee of the Company for a period of one year beginning on the Executive’s Date of Termination, and (ii) the Executive during such period contributed six percent of his or her base salary (as in effect immediately prior to the Date of Termination) to the 401(k) plan;
(4) continued participation in the Company’s medical and dental plans, less on the same basis as active employees participate in such payments)plans, until the earlier of (i) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (ii) the first anniversary of the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (for Executive and his or such person or persons as Executive may designate in a written instrument signed by him and delivered her dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(5) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his or her or her sole discretion; and
(6) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subparagraph 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the Release Agreement. In no event Executive breaches shall the Release Agreement release any of his agreements claim for indemnification by the Company or amounts and benefits set forth in paragraph 7, 9 or 10 subparagraph 6(a) hereof.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 4 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, unpaid and any reimbursable expenses which have been incurred but are unpaid, unpaid as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"), and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 65.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Executive's death Retirement or death, Termination for DisabilityDisability or Retirement, the Executive or, in the event of death, his beneficiary (as identified to the Company in writing) shall make no further payments be entitled to Executive except as contemplated in (a) receive the following: (i) and payment of the Executive's then current base salary for a period of three (3) years following the termination date, payable on a monthly basis, (ii) abovethree (3) annual payments on the anniversary of the termination date, each in an amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to Executive's death, Disability or Retirement, (iii) continued participation by Executive and his spouse in the Company's medical, dental and vision health plan, at the Company's expense, until Executive dies or, if later, until his surviving spouse dies, (iv) continued participation in the Company's life insurance plan until Executive dies or becomes ineligible by reason of age, (v) continued participation by each of Executive's dependent children in the Company's medical, dental and vision health plan, at the Company's expense, until each child is no longer a dependent, and (vi) immediate vesting of Executive's existing stock options.
(c) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary Base Salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty (30) days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive.
(d) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay be entitled to Executive amounts receive the following: (i) payment of the Executive's then current Base Salary for a period of five (5) years following the termination date, payable on a monthly basis, (ii) five (5) annual payments on the anniversary of the termination date, each in an amount equal to the amounts average of the Bonus Compensation paid to the Executive during the three (3) years prior to the termination date, (iii) a lump sum payment equal to the present value of the amount the Company would have received as salary (based on contributed or credited to the Executive's salary then retirement account and Nonqualified Executive Retirement Plan during the first five (5) years following the termination date, (iv) continued participation by Executive and his spouse in effect the Company's medical, dental and vision health plan, at the Company's expense, until Executive dies or, if greaterlater, until his surviving spouse dies, (v) continued participation by each of Executive's Reference Salary) had dependent children in the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to endCompany's medical, dental and vision health plan, at the Company's expense, until each child is no longer a dependent, (vi) immediate vesting of Executive's existing stock options, and (vii) continued participation in the Company's life insurance plan until Executive dies or becomes ineligible by reason of age.
(e) If the Executive terminates his employment because of a Change in Control, the Executive shall be entitled to receive the following: (i) a lump sum payment equal to 2.99 times such amounts would have been the sum of the Executive's then current Base Salary, (ii) a lump sum payment equal to 2.99 times the amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to the termination date, (iii) continued participation by Executive and his spouse in the Company's medical, dental and vision health plan, at the Company's expense, until Executive dies or, if later, until his surviving spouse dies, (iv) continued participation by each of Executive's dependent children in the Company's medical, dental and vision health plan, at the Company's expense, until each child is no longer a dependent, (v) immediate vesting of Executive's existing stock options, and (iv) continued participation in the Company's life insurance plan until Executive dies or becomes ineligible by reason of age. Upon entitlement, all sums due hereunder will be payable in cash or by official bank check within thirty (30) days following termination of the Executive's employment. Notwithstanding anything to the contrary contained herein, in the event Executive is entitled during the payment period to that any payments under any disability benefit plan or the like in which Executive has participated as an employee portion of the Companypayments or benefits received or to be received by the Executive, less such payments); providedtogether with any other payments received by him, howeverwhether paid or payable pursuant to the terms of this Agreement or any other plan, that in arrangement or agreement with the Company or any other person or entity, would cause, either directly or indirectly, an "excess parachute payment" to exist within the meaning of said Section 280G of the Internal Revenue Code, the payments hereunder shall be reduced until no portion of the payments would fail to be deductible by reason of being an "excess parachute payment". In the event of Executive's death during the payment periodthat any dispute arises as to whether an "excess parachute payment" exists, the Company appropriate calculations shall not be obligated to pay any subsequent such amounts, but made by the Company shall pay to ExecutiveCompany's estate (or such person or persons as Executive may designate in a written instrument signed by him regularly employed independent public auditors and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company in writing within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date for payment of notice such severance payment, and the Company will warrant to the Company Executive the accuracy of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in calculations and the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofinformation on which they are based.
(ef) If Executive shall not be required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment employment, (iii) any benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, on account of Executive giving notice that the extension provision in the first sentence of paragraph 5(b) hereof shall no longer apply or on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twelve (12) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to endthe Employment Period ends, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay amounts to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) or, if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, shall pay to such payee(s) a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois the Company's principal lending bank in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. In addition, the Company shall make a lump sum payment to Executive in an amount equal to the Target Bonus. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the date of this Agreement. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If Executive shall not be required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), expense reimbursements or benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy, but are unused as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment employment, (iii) any benefits to which Executive is entitled under the Consolidated Omnibus Reconciliation Act of 1985, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to endthe Employment Period ends, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any such subsequent such amounts, but the Company shall pay amounts to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) or, if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the date of this Agreement. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in subparagraph (a) ), clauses (i), (ii) and (iiiii) above.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 4 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, a prorated Bonus Compensation for the year of termination, not less than the Executive’s pro rata share of his average bonus paid over the prior three years, and any reimbursable expenses which have been incurred but are unpaid, unpaid as of the end of the Employment PeriodPeriod (all of which shall be paid within thirty (30) days of termination), (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive’s employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), (iv) any accumulations and benefits to which employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (iiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 65.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Executive's death Retirement or ’s death, Termination for DisabilityDisability or Retirement, the Executive or, in the event of death, his beneficiary (as identified to the Company in writing) shall be entitled to receive the following: (i) except in the case of the Executive’s death, a lump sum payment of three times the Executive’s then current base salary, but in no event less than $910,000 (ii) except in the case of the Executive’s death, a lump sum payment of three times the average of the Bonus Compensation paid to the Executive during the three (3) years prior to Executive’s death, Disability or Retirement, but in no event less than $1,055,000 (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (v) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (vi) at the Executive’s option, the Company shall make no further transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be liable for all payments to Executive except as contemplated in (a) (i) due on such policies, and (iivii) aboveimmediate vesting of Executive’s existing stock options.
(c) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Termination for Cause, the Company shall pay Executive (i) an amount equal to that amount Executive would have received as salary (based on Executive's salary ’s Base Salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's ’s termination of Executive's ’s employment or the date thirty (30) days after the Company's ’s notice to Executive of such termination, and (ii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan. The Company shall make no further payments to Executive, except as provided in Section 5(a) hereof.
(d) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay be entitled to Executive amounts receive the following: (i) a lump sum payment equal to five times that of the amounts Executive’s then current Base Salary, but in no event less than $1,516,800, (ii) a lump sum payment equal to five times the average of the Bonus Compensation paid to the Executive would have received as salary during the three (based on Executive's salary then 3) years prior to the termination date, but in effect not event less than $1,758,335, (iii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (iv) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if greaterlater, until his surviving spouse dies, (v) continued participation by each of Executive's Reference Salary) had ’s dependent children in the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to endCompany’s medical, dental and vision health plan, at the times such amounts would have been paid Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event vi) immediate vesting of Executive's death during ’s existing stock options, and (vii) at the payment periodExecutive’s option, the Company shall not transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be obligated liable for all payments due on such policies.
(e) If the Executive terminates his employment because of a Change in Control, the Executive shall be entitled to pay any subsequent such amountsreceive the following: (i) a lump sum payment equal to 2.99 times the sum of the Executive’s then current Base Salary, but in no event less than $907,046 (ii) a lump sum payment equal to 2.99 times the amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to the termination date, but in no event less than $1,051,484, (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (v) immediate vesting of Executive’s existing stock options, (vi) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (vii) at the Executive’s option, the Company shall pay transfer to the Executive the ownership of any and all life insurance policies insuring the Executive's estate ’s life that the Company has purchased and the Executive shall thereafter be liable for all payments due on such policies. Upon entitlement, all sums due hereunder will be payable in cash or by official bank check within thirty (30) days following termination of the Executive’s employment. Notwithstanding anything to the contrary contained herein, in the event that any portion of the payments or such benefits received or to be received by the Executive, together with any other payments received by him, whether paid or payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any other person or persons entity, would cause, either directly or indirectly, an “excess parachute payment” to exist within the meaning of said Section 280G of the Internal Revenue Code, the payments hereunder shall be reduced until no portion of the payments would fail to be deductible by reason of being an “excess parachute payment”. In the event that any dispute arises as Executive may designate in a written instrument signed to whether an “excess parachute payment” exists, the appropriate calculations shall be made by him the Company’s regularly employed independent public auditors and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company in writing within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date for payment of notice such severance payment, and the Company will warrant to the Company Executive the accuracy of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in calculations and the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofinformation on which they are based.
(ef) If Executive shall not be required to mitigate the Employment Period ends early pursuant amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
(g) Notwithstanding anything herein to paragraph 5 hereof on account the contrary, with respect to any right to a payment that constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code, any payment to be made upon the Executive’s termination of employment shall be delayed until the first day of the seventh month following the Participant’s termination of employment if the Participant is a Termination by Executive “specified employee” within the meaning of Section 409A of the Code and the Company’s 409A Policy, if any.
(h) Notwithstanding anything herein to the contrary, with Advance Notice, the Company shall make no further payments respect to Executive except as contemplated in (a) any right to a payment that (i) is to be made under this Section 5 based on the continued participation by Executive, his spouse and each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, and (ii) aboveconstitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code, any such payment shall be made in accordance with Treasury Regulation §1.409A-3(i)(1)(iv). Expenses eligible for reimbursements and in-kind benefits shall be determined based on the coverage provided by the relevant plan maintained by the Company for eligible employees, and any payments shall be made only for the period or periods specified in this Section 5. Any amount of expenses eligible for reimbursement or in-kind benefit provided during a taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year. The reimbursement of any eligible expense shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred. The right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof4 hereof on November 30, 1999, or if the Employment Period ends early pursuant to paragraph 5 4 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(samounts(s) payable pursuant to the succeeding provisions of this paragraph 65.
(b) If the Employment Period ends pursuant to paragraph 5 4 hereof on Executive's sixty-fifth birthdayNovember 30, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) 1999: (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's a salary then in effect or, if greater, Executive's Reference Salaryof $625,000 per annum) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to endNovember 30, 2001, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); providedand (ii) until November 30, however2001 or such earlier time as Executive commences other employment, Executive and his dependents shall continue to be eligible to participate, on the same basis as other employees of the Company, in the Company's health care program in effect from time to time. Executive agrees that the period subsequent to November 30, 1999 during which he and his dependents continue to be eligible to participate in such health care program shall count toward the period of continuation coverage required under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and any comparable state laws. It is expressly understood that the Company's payment obligations under this (b) shall cease in the event Executive breaches any of his agreements in paragraph 6, 8 or 9 hereof.
(c) If the Employment Period ends early pursuant to paragraph 4 hereof on account of Executive's death during the payment perioddeath, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered amounts equal to the amounts Executive would have received as salary (based on a salary of $625,000 per annum or, if greater, Executive's salary then in effect) had the Employment Period remained in effect until November 30, 1999, at the times such amounts would have been paid.
(d) If the Employment Period ends early pursuant to paragraph 4 hereof on account of a Termination for Disability, the Company prior shall pay to his death) either (i) Executive amounts during the remainder of the payment period equal to one-half of the amounts which Executive would have received as salary (based on a salary of $625,000 per annum) had the Employment Period remained in effect until November 30, 1999, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive but for his death or (ii) if so elected by has participated as an employee of the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's deathCompany, a lump sum amount equivalent to the discounted present value of less such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionpayments). It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 76, 8 or 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of a Termination by Executive with Advance Noticefor Cause, the Company shall make no further payments to Executive except as contemplated in (a) (ia)(i) and (ii) above.
(f) If the Employment Period ends early pursuant to paragraph 4 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason: (i) the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on a salary of $625,000 per annum) had the Employment Period remained in effect until the second anniversary of the end of the Employment Period, at the times such amounts would have been paid (in the
(g) If the Employment Period ends early pursuant to paragraph 4 hereof on account of a Termination by Executive for CEO Position Offer Deadlock, the Company shall make no further payments to Executive except as contemplated in (a)(i) and (ii) above.
Appears in 1 contract
Samples: Employment Agreement (Dean Foods Co)
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereofSeptember 26, 2004, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which has accrued but is unpaid, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 66 or the provisions of paragraph 7.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the period of fifteen years from and after the end of the Employment Period equal to one-half of the monthly installments which would have been paid to Executive pursuant to paragraph 7 hereof had the Employment Period instead ended early pursuant to paragraph 5 hereof on account of Retirement or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America, N.A. in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Disability, the Company shall make no further payments pay to Executive except (or his personal representative) amounts during the period of fifteen years from and after the end of the Employment Period equal to the monthly installments which would have been paid to Executive pursuant to paragraph 7 hereof had the Employment Period instead ended early pursuant to paragraph 5 hereof on account of Retirement (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as contemplated an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (aor such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) and amounts during the remainder of the payment period equal to one-half the amounts which would have been paid to Executive but for his death or (ii) aboveif so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America, N.A. in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election.
(cd) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(de) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until September 26, 2004 and for consulting services had the date on which Consulting Period (without any extension thereofas defined in paragraph 7 hereof) it was then scheduled to endthereafter continued until September 26, 2019, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois America, N.A. in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (de) shall cease in the event Executive breaches any of his agreements in paragraph 78, 9 10 or 10 11 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Employment Period ends on Date of Termination, regardless of the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof reason for any reasontermination of employment, Executive shall cease will be entitled to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which Base Salary that has accrued but is unpaid, and any annual bonus that has been earned but is unpaid, any reimbursable expenses which that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which that by their terms extend beyond termination of Executive's employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in paragraph 6, any Company severance pay program or policy) and (iii) reimbursement for any other amount(sbenefits to which Executive is entitled and has paid in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") payable pursuant (such reimbursement to be made upon Executive's written requests therefor from time to time). Except as specifically described in this subparagraph 6(a) and in the succeeding provisions subparagraphs of this paragraph 66 (under the circumstances described in those succeeding subparagraphs), from and after the Date of Termination Executive shall cease to have any rights to salary, bonus, expense reimbursements or other benefits from the Company.
(b) If the Employment Period ends pursuant to in accordance with paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubparagraph 6(a).
(c) If Subject to subparagraph (2), if the Employment Period ends early pursuant to in accordance with paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay to Executive amounts following:
(1) a lump sum payment equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during in the remainder event the Employment Period ends prior to the date that is 16 months after the Effective Date, 0.125 times the number of months in the payment period equal to one-half of the amounts which would have been paid to Executive but for his death Employment Period multiplied by Executive's Average Annual Compensation (as defined below) or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account or after the date that is 16 months after the Effective Date, 2 times Executive's Average Annual Compensation (for purposes hereof, "Average Annual Compensation" means (x) Executive's Base Salary for fiscal year 2005, if the Date of a Termination by Executive with Advance Noticeoccurs in fiscal year 2005, or the Company shall make no further payments to Executive except as contemplated average of Executive's Base Salary in effect for the final two fiscal years in the Employment Period (a) including the fiscal year in which the Date of Termination occurs), if the Date of Termination occurs after December 31, 2005; plus (i) and (ii) above.y)
Appears in 1 contract
Samples: Employment Agreement (PRG Schultz International Inc)
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which has accrued but is unpaid, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(samounts(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, (ii) any Annual Bonus that has been earned for the calendar year preceding the calendar year in which termination occurs but is unpaid, (iii) a pro-rata portion of Executive’s Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such Annual Bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that Executive is employed by the Company and the denominator of which is 365), payable at the same time Annual Bonuses for such year are paid to other senior executives of the Company, (iv) any reimbursable expenses that have been incurred but are unpaid, (v) pay for any vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, and (vi) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the date on extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy). Except as specifically described in this Section 6(a) and in the succeeding subparagraphs of this Section 6 (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereofunder the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus bonus, expense reimbursements or other benefits from the Company. The Company will pay (if anydirectly or through a subsidiary or other Affiliate) or benefits other than: the amounts set forth in subclauses (i) through (v) above to Executive in a lump sum as soon as administratively practicable after Executive’s Date of Termination but no later than is required by applicable law; provided, however, that if payment of any salary which has accrued but is unpaidsuch amount at such time would result in a prohibited acceleration under Section 409A of the Internal Revenue Code of 1986, and any expenses which as amended (the “Code”), then such amount shall be paid at the time the amount would have been incurred but are unpaidpaid under the applicable plan, as of the end of the Employment Periodpolicy, (ii) (but only program or arrangement relating to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6such amount absent such prohibited acceleration.
(b) If the Employment Period ends pursuant to paragraph in accordance with Section 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement ’s death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive pursuant to this Agreement except as contemplated in (aSection 6(a) (i) and (ii) aboveexcluding, in the event of a Termination for Cause, any amount payable pursuant to Section 6(a)(iii)).
(c) If In addition to the payments set forth in Section 6(a), subject to Section 12, if the Employment Period ends early pursuant to paragraph in accordance with Section 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall, subject to Section 6(d) below and Executive’s continued compliance with the obligations in Section 7 hereof, be entitled to the following:
(i) severance benefits equal to (A) one (1) times Executive’s Base Salary for the year in which the Date of Termination occurs (the “Termination Year Salary”), less applicable withholdings and deductions, paid in equal installments over the twelve (12) months following the effective date of such termination pursuant to the Company’s payroll practices, plus (B) an amount equal to the Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred (together with the Termination Year Salary, the “Cash Severance Benefits”), payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would be paid had the performance hurdles been met) to other senior executives of the Company (for the avoidance of doubt the payment in this clause (B) shall not be contingent on any performance goals or bonus criteria). Notwithstanding any of the foregoing, however, to the extent permitted by Section 409A of the Code, if the Company elects to extend the Restricted Period (as defined below) through the twenty-four (24)-month period following the Date of Termination, the Company shall pay to Executive amounts Executive, instead of the Cash Severance Benefits, severance benefits equal to (X) two (2) times Executive’s Termination Year Salary, less applicable withholdings and deductions, paid in equal installments over the twenty-four (24) months following the effective date of such termination pursuant to the Company’s payroll practices, plus (Y)(I) an amount equal to the amounts Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred, payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) be paid had the Employment Period remained performance hurdles been met) to other senior executives of the Company, and (II) an amount equal to the Annual Bonus which Executive received for the year prior to the year in effect until which the date on which (without any extension thereof) it was then scheduled to endDate of Termination occurred, payable at the times such amounts would have been same time the Annual Bonuses for the second year following the year in which the Date of Termination occurred are paid (or would be paid had the performance hurdles been met) to other senior executives of the Company; provided that for the avoidance of doubt the payments in this clause (Y) shall not be contingent on any performance goals or bonus criteria; and
(ii) subject to (A) Executive’s timely election of continuation coverage under the event Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (B) Executive’s continued copayment of premiums at the same level and cost to Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which as if Executive has participated as was an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s medical and dental plans, less on the same basis (including cost) as active employees participate in such payments)plans, until the earlier of (I) Executive’s eligibility for any such coverage under another employer’s medical or dental insurance plans; provided, however, or (II) the second anniversary of the Date of Termination; except that in the event that participation in any such plan is barred or would adversely affect the tax status of Executive's death during the payment periodplan pursuant to which the coverage is provided, the Company shall not be obligated pay the premium required to pay any subsequent continue such amountscoverage pursuant to COBRA (the “COBRA Premium”) and to the extent such COBRA period expires, but the Company shall pay the lesser of (x) the COBRA Premium and (y) the premium required to Executive's estate continue such coverage after COBRA coverage is converted to individual plan(s).
(or such person or persons d) The Company shall make no payments in accordance with Section 6(c) if Executive declines to sign and return a Release Agreement in substantially the same form that is attached hereto as Executive may designate in a written instrument signed by him Appendix 2. Such Release Agreement shall be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination. No payments shall be made in accordance with Section 6(c) until the Company prior to his death) either (i) amounts during the remainder expiration of the revocation period provided for in the Release Agreement. The first installment payment period equal to one-half following the expiration of the revocation period shall include all amounts which that would otherwise have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within during the period beginning on the Date of sixty (60) days after Termination and ending on the date of Executive's deaththe first installment payment (for the avoidance of doubt, a lump sum amount equivalent without interest). Notwithstanding anything to the discounted present value contrary contained or implied in this Section 6, if the 60th day following the Date of such reduced amountsTermination falls in a different calendar year than the Date of Termination, discounted at then notwithstanding the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at actual date on which Executive signs and returns the date of notice Release Agreement (and the Release Agreement becomes no longer subject to revocation), payments under Section 6(c) shall not commence prior to the Company of such election, with said amount to be paid on a date no later than thirty (30) days 60th day following the date Date of notice Termination. In addition, notwithstanding the foregoing, nothing in the Release Agreement will require Executive to release any vested claims or rights he has against the Company, or Company’s obligations to Executive, for vested employee benefits, including vested equity awards, to which Executive is entitled and that exist prior to the Company signing of such electionthe Release Agreement. It is expressly understood that the Company's payment obligations under this (d) shall cease This limitation in the event Executive breaches any Release Agreement includes, but is not limited to, Executive’s severance payments, rights to indemnification and advancement of his agreements expenses as set forth herein and in paragraph 7the Company Group’s governing documents, 9 vested rights regarding profit interests, equity options, restricted equity units, stock appreciation rights, equity previously awarded to Executive, equity incentives, 401 (k) retirement plan or 10 hereofother benefits, including without limitation health, medical, life, disability and other insurance plans or programs or fringe benefits.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on account the part of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) abovehereunder or otherwise.
Appears in 1 contract
Samples: Employment Agreement (Aveanna Healthcare Holdings, Inc.)
Post-Employment Period Payments. (a) If At the Employment Period ends on Date of Termination, regardless of the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof reason for any reasontermination of employment, Executive shall cease will be entitled to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which Base Salary that has accrued but is unpaid, and any annual bonus that has been earned but is unpaid, any reimbursable expenses which that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which that by their terms extend beyond termination of Executive's employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in paragraph 6, any Company severance pay program or policy) and (iii) reimbursement for any other amount(sbenefits to which Executive is entitled and has paid in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") payable pursuant (such reimbursement to be made upon Executive's written requests therefor from time to time). Except as specifically described in this subparagraph 6(a) and in the succeeding provisions subparagraphs of this paragraph 66 (under the circumstances described in those succeeding subparagraphs), from and after the Date of Termination Executive shall cease to have any rights to salary, bonus, expense reimbursements or other benefits from the Company.
(b) If the Employment Period ends pursuant to in accordance with paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubparagraph 6(a).
(c) If Subject to subparagraph 6(d), if the Employment Period ends early pursuant to in accordance with paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay to Executive amounts equal be entitled to the amounts Executive would have received as salary following:
(based on 1) (A) if the Date of Termination occurs within the first 120 days of Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of employment with the Company, less such payments); severance payments equal to fifty percent (50%) of Executive's Base Salary for the then-current fiscal year, payable bi-weekly in installments based on the company's payroll practices as in effect on the Date of Termination (provided, however, that if the Termination without Cause or Termination for Good Reason occurs after a Change in Control, then the event amount of the payments shall be equal to the amount provided in subclause (1)(B) of this subparagraph (c) notwithstanding the date the Employment Period ends); or (B) if the Date of Termination occurs more than 120 days after Executive is first employed by the Company, severance payments equal to one hundred percent (100%) of Executive's death during Base Salary for the then-current fiscal year, payable bi-weekly in installments based on the Company's payroll practices as in effect on the Date of Termination; plus
(2) an additional amount equal to the bi-weekly employer's subsidy payment period, made by the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to for Executive's estate health benefits in effect as of the Date of Termination (or such person or persons as Executive may designate in a written instrument signed by him and delivered the "Health Reimbursement"), payable bi-weekly together with the installment payments made pursuant to clause (1) of this subparagraph 6(c), which Health Reimbursement payments shall only continue until the Company prior to his death) either earlier of (i) amounts during the remainder Executive's eligibility for any such coverage under another employer's or any other medical or dental insurance plans sponsored by a subsequent employer of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to first anniversary of the Company within the period Date of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this Termination.
(d) The Company shall cease make no payments in accordance with subparagraph 6(a) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Samples: Employment Agreement (PRG Schultz International Inc)
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in any option theretofore granted to Executive or in the SERP or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"), and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement (provided such Retirement is not a Termination Following a Change of Control) or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, and such termination does not constitute a Termination Following a Change of Control, the Company shall pay to Executive amounts a lump sum payment equal to the amounts Executive would have received as salary (based on three times Executive's base salary then in effect at the time of such termination (or, if greaterhigher, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period. In addition, the Company shall not be obligated reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to pay any subsequent such amounts, but Executive (for Executive and his dependents) by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered subsequent to the Company prior to his death) either (i) amounts during the remainder end of the payment period equal Employment Period pursuant to one-half the requirements of COBRA as in effect on the amounts which would have been paid date of this Agreement. The Company shall make no further payments to Executive but for his death or except as contemplated in (a)(i), (ii) if so elected by the payee(sand (iii) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionabove. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, and such termination does not constitute a Termination Following a Change of Control, the Company shall make no further payments to Executive except as contemplated in (aa)(i), (ii) and (iii) above.
(i) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination Following a Change of Control, Executive shall be entitled to receive the following:
(A) For a period of three years following the date of termination, Executive's base salary at the time of such termination (or, if higher, Executive's Reference Salary) payable at the times such amounts would have been paid; PROVIDED, HOWEVER, that if Executive so chooses, in his sole discretion, such payment under this subparagraph (f)(i)(A) shall be made in a lump sum;
(B) A lump sum payment equal to Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs);
(C) If Executive's employment is terminated after July 1 of the then- current year, an additional amount equal to the product of (x) Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs) multiplied by (y) a fraction, the numerator of which shall be the number of months that have elapsed, on the day of termination, during the then-current year (rounded up to the nearest full month) and the denominator of which shall be 12; and
(D) For a period of one year following the date of termination, Executive shall be entitled to be a full participant in, and shall be entitled to the benefits provided under, the Company's Standard Executive Benefits Package (but shall not be entitled to stock option, performance share, performance unit, stock purchase, stock appreciation or similar equity-based compensatory benefit awards) and the additional benefits set forth in Section 3(f) hereof at the time of such termination (or, if higher, for the preceding year or the year in which the Change of Control occurs). If, however, Executive is not eligible to participate in the benefits as set forth in the preceding sentence, the Company shall reimburse Executive, on a monthly basis (net after taxes on the receipt of such reimbursement), for any premiums or other fees paid by Executive to obtain benefits (for Executive and his dependents) equivalent to the Standard Executive Benefits Package and the additional benefits set forth in Section 3(f). Notwithstanding the foregoing or any other provision of this Agreement, (A) for the purpose of determining the period of continuation coverage to which the Executive or any of his dependents is entitled pursuant to the requirements of COBRA, the Executive's "qualifying event," subject to the requirements of applicable plans, will be the termination of the one-year period set forth above in this subparagraph (f)(i)(D) and the Executive will be considered to have remained actively employed on a full time basis through that date and (iiB) abovethe Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executives and his dependents) by the Company pursuant to the requirements of COBRA as in effect on the date of this Agreement.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, (ii) any Annual Bonus that has been earned for the calendar year preceding the calendar year in which termination occurs but is unpaid, (iii) a pro-rata portion of Executive’s Annual Bonus for the calendar year in which the termination occurs based on actual results for such year (determined by multiplying the amount of such Annual Bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that Executive is employed by the Company and the denominator of which is 365), payable at the same time Annual Bonuses for such year are paid to other senior executives of the Company, (iv) any reimbursable expenses that have been incurred but are unpaid, (v) pay for any vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, and (vi) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the date on extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy). Except as specifically described in this Section 6(a) and in the succeeding subparagraphs of this Section 6 (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereofunder the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus bonus, expense reimbursements or other benefits from the Company. The Company will pay (if anydirectly or through a subsidiary or other Affiliate) or benefits other than: the amounts set forth in subclauses (i) through (v) above to Executive in a lump sum as soon as administratively practicable after Executive’s Date of Termination but no later than is required by applicable law; provided, however, that if payment of any salary which has accrued but is unpaidsuch amount at such time would result in a prohibited acceleration under Section 409A of the Internal Revenue Code of 1986, and any expenses which as amended (the “Code”), then such amount shall be paid at the time the amount would have been incurred but are unpaidpaid under the applicable plan, as of the end of the Employment Periodpolicy, (ii) (but only program or arrangement relating to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6such amount absent such prohibited acceleration.
(b) If the Employment Period ends pursuant to paragraph in accordance with Section 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement ’s death, Disability, Voluntary Termination or Termination for DisabilityCause, the Company shall will make no further payments to Executive pursuant to this Agreement except as contemplated in (aSection 6(a) (i) and (ii) aboveexcluding, in the event of a Termination for Cause, any amount payable pursuant to Section 6(a)(iii)).
(c) If In addition to the payments set forth in Section 6(a), subject to Section 12, if the Employment Period ends early pursuant to paragraph in accordance with Section 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall, subject to Section 6(d) below and Executive’s continued compliance with the obligations in Section 7 hereof, be entitled to the following:
(i) severance benefits equal to (A) one (1) times Executive’s Base Salary for the year in which the Date of Termination occurs (the “Termination Year Salary”), less applicable withholdings and deductions, paid in equal installments over the twelve (12) months following the effective date of such termination pursuant to the Company’s payroll practices, plus (B) an amount equal to the Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred (together with the Termination Year Salary, the “Cash Severance. Benefits”), payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would be paid had the performance hurdles been met) to other senior executives of the Company (for the avoidance of doubt the payment in this clause (B) shall not be contingent on any performance goals or bonus criteria). Notwithstanding any of the foregoing, however, to the extent permitted by Section 409A of the Code, if the Company elects to extend the Restricted Period (as defined below) through the twenty-four (24)-month period following the Date of Termination, the Company shall pay to Executive amounts Executive, instead of the Cash Severance Benefits, severance benefits equal to (X) two (2) times Executive’s Termination Year Salary, less applicable withholdings and deductions, paid in equal installments over the twenty-four (24) months following the effective date of such termination pursuant to the Company’s payroll practices, plus (Y)(I) an amount equal to the amounts Annual Bonus which Executive received for the year prior to the year in which the Date of Termination occurred, payable at the same time the Annual Bonuses for the year following the year in which the Date of Termination occurred are paid (or would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) be paid had the Employment Period remained performance hurdles been met) to other senior executives of the Company, and (II) an amount equal to the Annual Bonus which Executive received for the year prior to the year in effect until which the date on which (without any extension thereof) it was then scheduled to endDate of Termination occurred, payable at the times such amounts would have been same time the Annual Bonuses for the second year following the year in which the Date of Termination occurred are paid (or would be paid had the performance hurdles been met) to other senior executives of the Company; provided that for the avoidance of doubt the payments in this clause (Y) shall not be contingent on any performance goals or bonus criteria; and
(ii) subject to (A) Executive’s timely election of continuation coverage under the event Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (B) Executive’s continued copayment of premiums at the same level and cost to Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which as if Executive has participated as was an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s medical and. dental plans, less on the same basis (including cost) as active employees participate in such payments)plans, until the earlier of (I) Executive’s eligibility for any such coverage under another employer’s medical or dental insurance plans; provided, however, or (II) the second anniversary of the Date of Termination; except that in the event that participation in any such plan is barred or would adversely affect the tax status of Executive's death during the payment periodplan pursuant to which the coverage is provided, the Company shall not be obligated pay the premium required to pay any subsequent continue such amountscoverage pursuant to COBRA (the “COBRA Premium”) and to the extent such COBRA period expires, but the Company shall pay the lesser of (x) the COBRA Premium and (y) the premium required to Executive's estate continue such coverage after COBRA coverage is converted to individual plan(s).
(or such person or persons d) The Company shall make no payments in accordance with Section 6(c) if Executive declines to sign and return a Release Agreement in substantially the same form that is attached hereto as Executive may designate in a written instrument signed by him Appendix 2. Such Release Agreement shall be executed and be executed and delivered (and no longer subject to revocation, if applicable) within sixty (60) days following termination. No payments shall be made in accordance with Section 6( c) until the Company prior to his death) either (i) amounts during the remainder expiration of the revocation period provided for in the Release Agreement. The first installment payment period equal to one-half following the expiration of the revocation period shall include all amounts which that would otherwise have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within during the period beginning on the Date of sixty (60) days after Termination and ending on the date of Executive's deaththe first installment payment (for the avoidance of doubt, a lump sum amount equivalent without interest). Notwithstanding anything to the discounted present value contrary contained or implied in this Section 6, if the 60th day following the Date of such reduced amountsTermination falls in a different calendar year than the Date of Termination, discounted at then notwithstanding the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at actual date on which Executive signs and returns the date of notice Release Agreement (and the Release Agreement becomes no longer subject to revocation), payments under Section 6(c) shall not commence prior to the Company of such election, with said amount to be paid on a date no later than thirty (30) days 60th day following the date Date of notice Termination. In addition, notwithstanding the foregoing, nothing in the Release Agreement will require Executive to release any vested claims or rights he has against the Company, or Company’s obligations to Executive, arising out of or relating to any vested employee benefits, including vested equity awards, to which Executive is entitled and that exist prior to the Company signing of such electionthe Release Agreement. It is expressly understood that the Company's payment obligations under this (d) shall cease This limitation in the event Executive breaches any Release Agreement includes, but is not limited to, Executive’s severance payments, rights to indemnification and advancement of his agreements expenses as set forth herein and in paragraph 7the Company Group’s governing documents, 9 vested rights regarding profit interests, equity options, restricted equity units, stock appreciation rights, equity previously awarded to Executive, equity incentives, 401(k) retirement plan or 10 hereofother benefits, including without limitation health, medical, life, disability and other insurance plans or programs or fringe benefits.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on account the part of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) abovehereunder or otherwise.
Appears in 1 contract
Samples: Employment Agreement (Aveanna Healthcare Holdings, Inc.)
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subparagraph 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subparagraphs of this Section 6 (under the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubparagraph 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, or at the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had end of the Employment Period remained Executive shall be entitled to the following:
(i) payment equal to one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount received by the Executive for the fiscal year prior to the year of termination of Executive’s employment, payable in twelve equal monthly installments commencing six months after the Date of Termination;
(ii) continued participation in the Company’s medical and dental plans, on the same basis as active employees participate in such plans, until the date on which earlier of (without i) Executive’s eligibility for any extension thereofsuch coverage under another employer’s or any other medical or dental insurance plans or (ii) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee first anniversary of the Company, less such payments)Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (for Executive and his or such person or persons as Executive may designate in a written instrument signed by him and delivered her dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(iii) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his or her or her sole discretion; and
(iv) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subparagraph 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in Section 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any properly reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this Section 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's ’s death Retirement or Termination for Disability, in addition to the payments contemplated in Section 6(a), the Company shall will pay Executive the compensation set forth in Section 6(c)(ii) below and will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) Section 6(a). If Executive’s employment terminates on account of Executive’s Voluntary Termination or Termination for Cause the Company will provide no further benefit and (ii) abovemake no further payments to Executive except as contemplated in Section 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall pay to Executive amounts equal in addition to the amounts benefits and payments described in Section 6(a) be entitled to the following:
(i) The Company will pay Executive salary continuance at Executive’s regular base salary level of $500,000 (or any higher base salary level in effect on the Date of Termination), less applicable payroll deductions, for one year following the Date of Termination, through direct deposit to Executive’s currently designated bank account or any other bank account Executive may designate. These payments in the total gross amount of $500,000 (or any higher base salary level in effect at the time of Executive’s Date of Termination) shall be referred to herein as “Separation Pay.” Separation Pay will be paid on the Company’s normal payroll dates beginning on the first payroll date on or after the Date of Termination, provided that no amount will be paid until the first pay day following the Effective Date of this Agreement, at which time any missed payments will also be paid;
(ii) a pro-rata portion of Executive’s annual bonus as set forth in Section 4(c) for the performance year in which Executive’s termination occurs (the “Pro-Rata Bonus Amount”). The Pro-Rata Bonus Amount shall be determined by multiplying the amount Executive would have received as salary (based on Executive's salary then in effect orupon performance had employment continued through the end of the performance year and the performance criteria had been achieved at target by a fraction, if greater, Executive's Reference Salary) had the Employment Period remained in effect until numerator of which is the date on number of days Executive was employed by the Company during the performance year and the denominator of which (without any extension thereof) it was then scheduled to end, at is the times such amounts would have been paid (total number of days in the event Executive is entitled during performance year. Subject to delay if required under Section 11(a), the payment period to any payments under any disability benefit plan or the like Pro-Rata Bonus Amount shall be paid in which Executive has participated as an employee of the Companya lump sum, less such payments); providedapplicable payroll deductions, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days after the Date of Termination;
(iii) In the event a termination of employment under this Section 6(c) takes place on or before April 1, 2020, an amount equal to two million dollars ($2,000,000), which shall be reduced by the following compensation and benefits provided to Executive between the Effective Date and the Date of Termination: (1) Base Salary; (2) Annual Bonus; (3) Company’s payment of any matching contribution to Executive’s account in the Company’s 401(k) plan; (4) the value of any grants under the Company’s long-term incentive plans; (5) the value of any other equity awards granted to Executive; and (6) any Separation Pay, the Pro-Rata Bonus Amount or any other payments payable after the Date of Termination to Executive under Section 6 of this Agreement. The sum of $2 million, less the aggregate of the above six amounts, shall be paid on a pro rata basis at the end of each calendar month, beginning with the first month following the Date of Termination, through April 1, 2020, less applicable payroll deductions.
(iv) Intentionally omitted;
(v) continued participation in the Company’s medical and dental plans, on the same basis as active employees participate in such plans, until the earlier of (1) Executive’s eligibility for any such coverage under another employer’s medical or dental insurance plans or (2) the date that is one (1) year after the Date of notice Termination; except that in the event that participation in any such plan permitted only by Executive electing continued participation through COBRA, then assuming Executive timely makes such an election under COBRA, the Company shall reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any COBRA premiums paid by Executive (for Executive and his dependents). Executive agrees that the period of coverage under such plans (or the period of reimbursement if participation is through COBRA) shall count against the plans’ obligation to provide continuation coverage pursuant to COBRA; and
(vi) to the extent not theretofore paid or provided, any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) If Executive’s employment is terminated on account of a Change in Control Termination, subject to Section 6(e) below, Executive shall cease be entitled to the payments and benefits described in Section 6(c) except that:
(i) the event Executive breaches payment called for in Section 6(c)(i) shall be equal to two (2) times the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, less applicable payroll deductions;
(ii) the time period described in Section 6(c)(v) shall be eighteen (18) months instead of one (1) year; and
(iii) notwithstanding anything to the contrary in any equity award agreement or plan, all unvested time-vested awards (whether to be settled in cash or stock) shall automatically vest and become non-forfeitable as of his agreements in paragraph 7, 9 or 10 hereofthe date the Release Agreement becomes irrevocable.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the The Company shall have no obligation to make no further payments to Executive except as contemplated any of the payments, or deliver any of the benefits, in accordance with Section 6(c) (aother than clause (vi) therein) or Section 6(d) if (i) and Executive does not move his primary residence to the Atlanta, Georgia Metropolitan Area on or before August 15, 2018 or (ii) aboveExecutive declines to sign and return a Separation Agreement, or revokes the Separation Agreement or the Separation Agreement does not become effective, within the sixty (60) calendar days after the Date of Termination. Notwithstanding any other provision of this Agreement, any payments to be made, or benefits to be delivered, under this Agreement (other than the payments required to be made by the Company pursuant to Sections 6(a) and 6(c)(vi)) prior to Executive’s execution of the Separation Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination, shall be accumulated and paid in a lump sum or delivered after Executive’s execution of the Separation Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, on the sixtieth (60th) day after the Date of Termination (except that, if such 60-day period spans more than one (1) calendar year, and the payments or benefits constitute deferred compensation subject to Section 409A, the payments shall be paid, and the benefits delivered, in the subsequent calendar year).
(f) Executive is not required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise, and employment of Executive after Termination shall not reduce any payment or benefit provided for in this Agreement, except as described in Section 6(c)(v).
Appears in 1 contract
Post-Employment Period Payments. (a) If At the end of the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) equity awards or other benefits other than: and Executive shall be entitled to (i) any salary Base Salary which has accrued but is unpaid, unpaid and any expenses unexpired vacation days which have been incurred accrued under the Company's vacation policy but are unpaidunused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company and excluding, except as hereinafter provided in subparagraph 6(b), any severance pay program or policy of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"). In addition, Executive shall be entitled to the succeeding provisions of this paragraph 6additional benefits and amounts described in subparagraph 6(b), in the circumstances described in such subparagraph.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination for Without Cause, the Company shall pay Executive an amount equal the unpaid Base Salary to that Executive which he would have received as salary (based on Executive's salary then in effect) had been entitled if the Employment Period remained in effect had continued until the later second anniversary of the effective date of Effective Date. Such payment shall be made in a lump sum as soon as practicable following the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If Termination Without Cause. In addition, if the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Without Cause or a Termination by Executive for Good Reasonprior to January 1, 2004, the Company 10 stock options described in paragraph 4(b)(i)(C) above shall pay to Executive amounts equal to the amounts Executive would have received as salary (based vest on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to such Termination Without Cause and such stock options shall remain outstanding until the discounted present value termination of such reduced amounts, discounted at options in accordance with the publicly announced reference rate for commercial lending terms of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofStock Option Plan.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 1 contract
Samples: Employment Agreement (International Steel Group Inc)
Post-Employment Period Payments. (a) If Except as otherwise provided in subsection 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subsection 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement or ’s death, Disability, Voluntary Termination, Termination for DisabilityCause or the end of the Employment Period in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubsection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(iii) payment equal to Executive amounts one (1) time the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus one (1) time the cash bonus amount equal to the amounts Executive would have received Target Bonus set forth in clause (i) of subsection 4(b) hereof for the fiscal year prior to the year of termination of Executive’s employment, payable in twelve equal monthly installments commencing on the earlier to occur of the first business day of the seventh month after the Date of Termination or Executive’s death;
(iv) automatic vesting of all unvested restricted stock grants and performance share awards effective as salary of the Date of Termination;
(based v) continued participation in the Company’s medical and dental plans, on Executive's salary then the same basis as active employees participate in effect orsuch plans, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which earlier of (without 1) Executive’s eligibility for any extension thereofsuch coverage under another employer’s or any other medical or dental insurance plans or (2) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee first anniversary of the Company, less such payments)Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(vi) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(vii) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof“Other Benefits”).
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the end of the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) equity awards, expense reimbursements or other benefits other than: and Executive shall be entitled to (i) any salary Base Salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued but are unused, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP any option rights or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in any option theretofore granted to Executive or any other benefit plan in which Executive has Employment Agreement - Xxxxxxx participated as an employee of the Company and excluding, except as hereinafter provided in subparagraph 6(b), any severance pay program or policy of the Company) and (iii) any other amount(s) payable pursuant benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"). In addition, Executive shall be entitled to the succeeding provisions of this paragraph 6additional benefits and amounts described in subparagraph 6(b), in the circumstance described in such subparagraph.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Without Cause or a Termination by By Executive for For Good Reason, the Company shall continue to pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, his Base Salary at the times time of such amounts would have been paid termination for a period of six (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less 6) months following such payments); provided, however, that in the event of Executive's death during the payment periodtermination. In addition, the Company shall not be obligated make a lump sum payment to pay any subsequent such amounts, but Executive in an amount equal to the Company shall pay to product of Executive's estate (or such person or persons as Executive may designate in Target Bonus Amount, multiplied by a written instrument signed by him and delivered to fraction, the Company prior to his death) either (i) amounts during numerator of which is the remainder number of days which have elapsed from January 1 of the payment period equal calendar year in which the Termination Without Cause or a Termination By Executive For Good Reason occurs through the date of such termination, and the denominator of which is 365. Further, Executive shall be entitled to one-half continue to participate, at the Company's cost, in the Company's medical, dental, disability and life insurance plans until the earlier of the amounts which would have been paid to Executive but (A) Executive's eligibility for his death any such coverage under another employer's or any other medical, dental or life insurance plans or (iiB) if so elected by six (6) months following the payee(s) by written notice to the Company within termination of Executive's employment. Executive agrees that the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent coverage under such plans shall count against such plans' obligation to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice provide continuation coverage pursuant to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionCOBRA. It is expressly understood that the Company's payment obligations and Executive's participation rights under this subparagraph (db) shall cease in the event Executive breaches any of his the agreements in paragraph 7, 9 or 10 7 hereof.
(ec) If Executive shall not be required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement (provided such Retirement is not a Termination Following a Change of Control) or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, and such termination does not constitute a Termination Following a Change of Control, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid Employment Period ends (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments), payable at the times such amounts would have been paid; provided, however, that if Executive so chooses, in the event of Executive's death during the his sole discretion, such payment periodunder this subparagraph (d) shall be made in a lump sum. In addition, the Company shall not be obligated reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to pay any subsequent such amounts, but Executive (for Executive and his dependents) by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered subsequent to the Company prior to his death) either (i) amounts during the remainder end of the payment period equal Employment Period pursuant to one-half the requirements of COBRA as in effect on the amounts which would have been paid date of this Agreement. The Company shall make no further payments to Executive but for his death or except as contemplated in (a)(i), (ii) if so elected by the payee(sand (iii) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionabove. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, and such termination does not constitute a Termination Following a Change of Control, the Company shall make no further payments to Executive except as contemplated in (aa)(i), (ii) and (iii) above.
(i) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination Following a Change of Control, Executive shall be entitled to receive an amount equal to two times the sum of (A) Executive's annual base salary at the time of such termination (or, if higher, Executive's Reference Salary) and (B) Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs), payable at the times such amounts would have been paid; provided, however, that if Executive so chooses, in his sole discretion, such payment under this subparagraph (f)(i) shall be made in a lump sum. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the date of this Agreement.
(ii) aboveNotwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any bonus, stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would be an "Excess Parachute Payment," within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement is required pursuant to the preceding sentence shall be made at the expense of the Company, if requested by the Executive or the Company, by the Company's independent accountants. The fact that the Executive's right to payments or benefits may be reduced by reason of the limitations contained in this paragraph 6(f) shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this paragraph 6(f), the Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this paragraph 6(f). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Date of Termination, the Company may effect such reduction in any manner it deems appropriate.
(g) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite "prime rate" as quoted from time to time during the relevant period in the Midwest Edition of The Wall Street Journal. Such interest will be payable as it accrues on demand. Any change in such prime rate will be effective on and as of the date of such change.
(h) Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 4 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, unpaid and any reimbursable expenses which have been incurred but are unpaid, unpaid as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive’s employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), (iv) any accumulations and benefits to which employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (iiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 65.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Executive's death Retirement or ’s death, Termination for DisabilityDisability or Retirement, the Executive or, in the event of death, his beneficiary (as identified to the Company in writing) shall be entitled to receive the following: (i) payment of the Executive’s then current base salary for a period of three (3) years following the termination date, payable on a monthly basis, (ii) three (3) annual payments on the anniversary of the termination date, each in an amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to Executive’s death, Disability or Retirement, (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (v) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (vi) at the Executive’s option, the Company shall make no further transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be liable for all payments to Executive except as contemplated in (a) (i) due on such policies, and (iivii) aboveimmediate vesting of Executive’s existing stock options.
(c) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Termination for Cause, the Company shall pay Executive (i) an amount equal to that amount Executive would have received as salary (based on Executive's salary ’s Base Salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's ’s termination of Executive's ’s employment or the date thirty (30) days after the Company's ’s notice to Executive of such termination, and (ii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan. The Company shall make no further payments to Executive, except as provided in Section 5(a) hereof.
(d) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay be entitled to Executive amounts receive the following: (i) payment of the Executive’s then current Base Salary for a period of five (5) years following the termination date, payable on a monthly basis, (ii) five (5) annual payments on the anniversary of the termination date, each in an amount equal to the amounts average of the Bonus Compensation paid to the Executive would have received as salary during the three (based on Executive's salary then 3) years prior to the termination date, (iii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (iv) continued participation by Executive and his spouse in effect the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if greaterlater, until his surviving spouse dies, (v) continued participation by each of Executive's Reference Salary) had ’s dependent children in the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to endCompany’s medical, dental and vision health plan, at the times such amounts would have been paid Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event vi) immediate vesting of Executive's death during ’s existing stock options and (vii) at the payment periodExecutive’s option, the Company shall not transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be obligated liable for all payments due on such policies.
(e) If the Executive terminates his employment because of a Change in Control, the Executive shall be entitled to pay receive the following: (i) a lump sum payment equal to 2.99 times the sum of the Executive’s then current Base Salary, (ii) a lump sum payment equal to 2.99 times the amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to the termination date, (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (v) immediate vesting of Executive’s existing stock options, (vi) any subsequent such amountsaccumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, but and (vii) at the Executive’s option, the Company shall pay transfer to the Executive the ownership of any and all life insurance policies insuring the Executive's estate ’s life that the Company has purchased and the Executive shall thereafter be liable for all payments due on such policies. Upon entitlement, all sums due hereunder will be payable in cash or by official bank check within thirty (30) days following termination of the Executive’s employment. Notwithstanding anything to the contrary contained herein, in the event that any portion of the payments or such benefits received or to be received by the Executive, together with any other payments received by him, whether paid or payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any other person or persons entity, would cause, either directly or indirectly, an “excess parachute payment” to exist within the meaning of said Section 280G of the Internal Revenue Code, the payments hereunder shall be reduced until no portion of the payments would fail to be deductible by reason of being an “excess parachute payment”. In the event that any dispute arises as Executive may designate in a written instrument signed to whether an “excess parachute payment” exists, the appropriate calculations shall be made by him the Company’s regularly employed independent public auditors and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company in writing within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date for payment of notice such severance payment, and the Company will warrant to the Company Executive the accuracy of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in calculations and the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofinformation on which they are based.
(ef) If Executive shall not be required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination, (ii) any plan benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in paragraph 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this subparagraph 6(a) it is then scheduled to end pursuant to and in the succeeding subparagraphs of this paragraph 5 hereof6 (under the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement or ’s death, Disability, Voluntary Termination, Termination for DisabilityCause or the end of the Employment Period in accordance with subparagraph 5(a) due to the Executive giving the Company written notice of nonrenewal, the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubparagraph 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or Cause, a Termination by Executive for Good Reason, or the end of the Employment Period in accordance with subparagraph 5(a) due to the Company giving the Executive written notice of nonrenewal, Executive shall pay be entitled to the following:
(1) payment equal to two (2) times the Executive’s annual Base Salary in effect immediately prior to the Date of Termination, plus two (2) times the cash bonus amount received by the Executive amounts for the fiscal year prior to the year of the termination of Executive’s employment or if the termination occurs within the first year of the Executive’s employment with the Company, a cash bonus equal to the amounts Executive Target Bonus set forth in clause (iii) of subparagraph 4(c) hereof, payable in twenty-four equal monthly installments commencing six months after the Date of Termination;
(2) if the termination occurs within the first year of the Executive’s employment with the Company, the 10,000 shares of restricted stock issued upon Executive’s hiring shall immediately vest;
(3) a lump sum payment, payable six months after the Date of Termination, in cash in an amount equal to the contributions the Company would have received as made (excluding any salary reduction contributions pursuant to an election of the Executive) for the benefit of the Executive to the Company’s qualified salaried 401(k) plan (based on Executive's salary then in effect or, if greater, Executive's Reference Salarythe Company is making matching contributions or other contributions to the salaried 401(k) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, plan at the times such amounts would have been paid time of the Executive’s termination), assuming (in i) the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated continued as an employee of the Company for a period of one year beginning on the Executive’s Date of Termination, and (ii) the Executive during such period contributed six percent of his or her base salary (as in effect immediately prior to the Date of Termination) to the 401(k) plan;
(4) continued participation in the Company’s medical and dental plans, less on the same basis as active employees participate in such payments)plans, until the earlier of (i) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (ii) the first anniversary of the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (for Executive and his or such person or persons as Executive may designate in a written instrument signed by him and delivered her dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company’s benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans’ obligation to provide continuation coverage pursuant to COBRA;
(5) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his or her or her sole discretion; and
(6) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) The Company shall cease have no obligation to make any payments in accordance with subparagraph 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the Release Agreement. In no event Executive breaches shall the Release Agreement release any of his agreements claim for indemnification by the Company or amounts and benefits set forth in paragraph 7, 9 or 10 subparagraph 6(a) hereof.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) her 2014 Guaranteed Bonus as provided in Section 4(c) (unless paid before such Date of Termination), (iii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iv) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this Section 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveSection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall in addition to the Company shall pay benefits and payments described in Section 6(a) be entitled to Executive amounts the following:
(i) a payment equal to one (1) times the Executive’s annual Base Salary in effect immediately prior to the Date of Termination (the “Severance Amount”). The Severance Amount up to an amount equal to the amounts Separation Pay shall be paid in a lump sum no later than ten (10) business days after the Date of Termination. The Severance Amount in excess of the Separation Pay, if any, shall be paid in a lump sum on the earlier to occur of the first business day of the seventh month after the Date of Termination or the tenth (10th) business day following the date of Executive’s death;
(ii) a pro-rata portion of Executive’s annual bonus as set forth in Section 4(c)(i) for the performance year in which Executive’s termination occurs (the “Pro-Rata Bonus Amount”). The Pro-Rata Bonus Amount shall be determined by multiplying the amount Executive would have received as salary based upon performance had employment continued through the end of the performance year and the performance criteria had been achieved at target by a fraction, the numerator of which is the number of days Executive was employed by the Company during the performance year and the denominator of which is the total number of days in the performance year. The Pro-Rata Bonus Amount up to an amount equal to the Separation Pay shall be paid in a lump sum no later than ten (based on Executive's salary then 10) business days after the Date of Termination. The Pro-Rata Bonus Amount in effect orexcess of the Separation Pay, if greaterany, Executive's Reference Salaryshall be paid in a lump sum on the earlier to occur of the first business day of the seventh month after the Date of Termination or the tenth (10th) had the Employment Period remained in effect until business day following the date on which (without any extension thereof) it was then scheduled of Executive’s death. Notwithstanding anything herein to endthe contrary, at the times such amounts would have been paid (in the event Executive’s employment is terminated after December 31, 2014 but prior to March 16, 2015, Executive is shall not be entitled during to receive the payment period Pro-Rata Bonus Amount;
(iii) all unvested time-vested restricted stock grants shall automatically vest and become non-forfeitable as of the date the Release Agreement becomes irrevocable;
(iv) notwithstanding anything to the contrary in any payments under any disability benefit plan award agreement or plan, all unvested performance-vested performance share or performance-vested restricted stock grants shall continue to vest and become non-forfeitable based on the like in which Executive has participated as an employee actual performance of the Company, less in the same manner and at the same time as if Executive remained employed by the Company;
(v) continued participation in the Company’s medical and dental plans, on the same basis as active employees participate in such payments)plans, until the earlier of (1) Executive’s eligibility for any such coverage under another employer’s medical or dental insurance plans or (2) the date that is one (1) year after the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to obtain benefits (for Executive and her dependents) equivalent to the benefits she is entitled to receive under the Company’s benefit plans. Executive agrees that the period of coverage under such plans (or the period of reimbursement if participation is barred) shall count against the plans’ obligation to provide continuation coverage pursuant to COBRA; and
(vi) to the extent not theretofore paid or provided, any other amounts or benefits required to be obligated paid or provided or which the Executive is eligible to pay receive under any subsequent such amountsplan, but program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall pay be hereinafter referred to as the “Other Benefits”).
(d) If Executive's estate (or such person or persons as ’s employment is terminated on account of a Change in Control Termination, subject to Section 6(e) below, Executive may designate in a written instrument signed by him and delivered shall be entitled to the Company prior to his deathpayments and benefits described in Section 6(c) either except that:
(i) amounts during the remainder of the payment period called for in Section 6(c)(i) shall equal to one-half two (2) times the Executive’s annual Base Salary in effect immediately prior to the Date of the amounts which would have been paid to Executive but for his death or Termination; and
(ii) if so elected by the payee(s) by written notice to the Company within the time period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois described in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (dSection 6(c)(v) shall cease in the event Executive breaches any be eighteen (18) months instead of his agreements in paragraph 7, 9 or 10 hereofone (1) year.
(e) If The Company shall have no obligation to make any of the Employment Period ends early payments, or deliver any of the benefits, in accordance with Section 6(c) (other than clause (vi) therein) or Section 6(d) if Executive declines to sign and return a Release Agreement, or revokes the Release Agreement or the Release Agreement does not become effective, within the sixty (60) calendar days after the Date of Termination. Notwithstanding any other provision of this Agreement, any payments to be made, or benefits to be delivered, under this Agreement (other than the payments required to be made by the Company pursuant to paragraph 5 hereof Sections 6(a) and 6(c)(vi)) prior to Executive’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination, shall be accumulated and paid in a lump sum or delivered after Executive’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, on account the sixtieth (60th) day after the Date of a Termination by Executive with Advance Notice(except that, if such 60-day period spans more than one (1) calendar year, and the payments or benefits constitute deferred compensation subject to Section 409A, the Company payments shall make no further payments be paid, and the benefits delivered, in the subsequent calendar year).
(f) Executive is not required to Executive except as contemplated mitigate the amount of any payment or benefit provided for in (a) (i) and (ii) abovethis Agreement by seeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in Section 6(c) below, at the Date of Termination, Executive will be entitled to: (i) any Base Salary that has accrued but is unpaid, any properly reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive's employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy), and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"). Except as specifically described in this Section 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination. Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof employment terminates on account of Executive's death Retirement death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveSection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall, in addition to the Company shall pay benefits and payments described in Section 6(a), be entitled to Executive amounts any earned but unpaid annual bonus for the fiscal year prior to the year in which the Date of Termination occurs and contingent upon Executive’s execution of a Separation and Release Agreement, in a form substantially similar to that attached as Exhibit A to this Agreement and defined in Section 8(s), to the following: (i) in the event such termination occurs after June 1, 2022, a payment equal to two (2) times the Executive's annual Base Salary in effect immediately prior to the Date of Termination (the "Severance Amount" as defined in Section 8(t)). The Severance Amount, up to an amount equal to the amounts Executive would have received “Separation Pay”, as salary defined in Section 8(u), shall be paid in a lump sum no later than ten (10) business days after the effective date of the Separation and Release Agreement. The Severance Amount in excess of the Separation Pay, if any, shall be paid in a lump sum on the earlier to occur of the first business day following the date which is six (6) months after the Date of Termination or the tenth (10th) business day following the date of Executive’s death, provided that, in the case of death, no amount will be paid prior to the first regular pay day following the effective date of the Separation and Release Agreement, at which time any missed payments will also be paid; (ii) all unvested time-vested restricted stock unit grants shall automatically vest and become non-forfeitable; (iii) all unvested performance-vested performance share unit or restricted stock unit grants shall remain outstanding and shall vest and become non-forfeitable in accordance with their terms and based on the actual performance of the Company; (iv) continued participation in the Company's medical and dental plans, on the same basis as active employees participate in such plans, until the earlier of (1) Executive's salary then in effect or, if greater, Executiveeligibility for any such coverage under another employer's Reference Salaryor any other medical or dental insurance plans or (2) had the Employment Period remained in effect until the date on which that is one (without any extension thereof1) it was then scheduled to end, at year after the times such amounts would have been paid (Date of Termination; except that in the event that participation in any such plan is permitted only by Executive is entitled during the payment period electing continued participation through COBRA, or if participation in any such plan would result in adverse tax consequences to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment periodthen assuming Executive timely makes an election under COBRA, the Company shall not be obligated to pay reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any subsequent such amounts, but the Company shall pay to COBRA premiums paid by Executive (for Executive and Executive's estate (or such person or persons as ’s dependents). Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is through COBRA) days after shall count against the date of Executive's death, a lump sum amount equivalent plans' obligation to provide continuation coverage pursuant to COBRA; and (v) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this "Other Benefits").
(d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof Executive's employment is terminated on account of a Termination by Change in Control Termination, subject to Section 6(e) below, Executive with Advance Notice, shall be entitled to the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.and
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement (provided such Retirement is not a Termination Following a Change of Control) or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, and such termination does not constitute a Termination Following a Change of Control, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid Employment Period ends (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments), payable at the times such amounts would have been paid; provided, however, that if Executive so chooses, in the event of Executive's death during the his sole discretion, such payment periodunder this subparagraph (d) shall be made in a lump sum. In addition, the Company shall not be obligated reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to pay any subsequent such amounts, but Executive (for Executive and his dependents) by the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered subsequent to the Company prior to his death) either (i) amounts during the remainder end of the payment period equal Employment Period pursuant to one-half the requirements of COBRA as in effect on the amounts which would have been paid Effective Date. The Company shall make no further payments to Executive but for his death or except as contemplated in (a)(i), (ii) if so elected by the payee(sand (iii) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionabove. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, and such termination does not constitute a Termination Following a Change of Control, the Company shall make no further payments to Executive except as contemplated in (aa)(i), (ii) and (iii) above.
(i) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination Following a Change of Control, Executive shall be entitled to receive an amount equal to two times the sum of (A) Executive's base salary at the time of such termination (or, if higher, Executive's Reference Salary) and (B) Executive's Target Bonus for the year in which such termination occurs (or, if higher, Executive's Target Bonus for the preceding year or the year in which the Change of Control occurs), payable at the times such amounts would have been paid; provided, however, that if Executive so chooses, in his sole discretion, such payment under this subparagraph (f)(i) shall be made in a lump sum. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the Effective Date.
(ii) aboveNotwithstanding any provision of this Agreement to the contrary, if any amount or benefit to be paid or provided under this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any bonus, stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on or the vesting or exercisability of any of the foregoing would be an "Excess Parachute Payment," within the meaning of Section 280G of the Code, or any successor provision thereto, but for the application of this sentence, then the payments and benefits to be paid or provided under this Agreement shall be reduced to the minimum extent necessary (but in no event to less than zero) so that no portion of any such payment or benefit, as so reduced, constitutes an Excess Parachute Payment; provided, however, that the foregoing reduction shall be made only if and to the extent that such reduction would result in an increase in the aggregate payment and benefits to be provided to Executive, determined on an after-tax basis (taking into account the excise tax imposed pursuant to Section 4999 of the Code, or any successor provision thereto, any tax imposed by any comparable provision of state law, and any applicable federal, state and local income taxes). The determination of whether any reduction in such payments or benefits to be provided under this Agreement is required pursuant to the preceding sentence shall be made at the expense of the Company, if requested by the Executive or the Company, by the -10- 11 Company's independent accountants. The fact that the Executive's right to payments or benefits may be reduced by reason of the limitations contained in this paragraph 6(f) shall not of itself limit or otherwise affect any other rights of the Executive other than pursuant to this Agreement. In the event that any payment or benefit intended to be provided under this Agreement is required to be reduced pursuant to this paragraph 6(f), the Executive shall be entitled to designate the payments and/or benefits to be so reduced in order to give effect to this paragraph 6(f). The Company shall provide the Executive with all information reasonably requested by the Executive to permit the Executive to make such designation. In the event that the Executive fails to make such designation within 10 business days of the Date of Termination, the Company may effect such reduction in any manner it deems appropriate.
(g) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite "prime rate" as quoted from time to time during the relevant period in the Midwest Edition of The Wall Street Journal. Such interest will be payable as it accrues on demand. Any change in such prime rate will be effective on and as of the date of such change.
(h) Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) or benefits other than: (i) any salary which has accrued but is unpaid, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 4 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, a prorated Bonus Compensation for the year of termination, not less than the Executive’s pro rata share of his average bonus paid over the prior three years, and any reimbursable expenses which have been incurred but are unpaid, unpaid as of the end of the Employment PeriodPeriod (all of which shall be paid within thirty (30) days of termination), (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive’s employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company), (iii) any plan benefits to which by their terms extend beyond termination Executive is entitled under Part 6 of Executive's employment Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”), (iv) any accumulations and benefits to which employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (iiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 65.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Executive's death Retirement or ’s death, Termination for DisabilityDisability or Retirement, the Executive or, in the event of death, his beneficiary (as identified to the Company in writing) shall be entitled to receive the following: (i) except in the case of the Executive’s death, a lump sum payment of three times the Executive’s then current base salary, but in no event less than $766,680 (ii) except in the case of the Executive’s death, a lump sum payment of three times the average of the Bonus Compensation paid to the Executive during the three (3) years prior to Executive’s death, Disability or Retirement, but in no event less than $1,015,000 (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (v) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (vi) at the Executive’s option, the Company shall make no further transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be liable for all payments to Executive except as contemplated in (a) (i) due on such policies, and (iivii) aboveimmediate vesting of Executive’s existing stock options.
(c) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of Termination for Cause, the Company shall pay Executive (i) an amount equal to that amount Executive would have received as salary (based on Executive's salary ’s Base Salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's ’s termination of Executive's ’s employment or the date thirty (30) days after the Company's ’s notice to Executive of such termination, and (ii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan. The Company shall make no further payments to Executive, except as provided in Section 5(a) hereof.
(d) If the Employment Period ends early pursuant to paragraph 5 4 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company Executive shall pay be entitled to Executive amounts receive the following: (i) a lump sum payment equal to five times that of the amounts Executive’s then current Base Salary, but in no event less than $1,277,800, (ii) a lump sum payment equal to five times the average of the Bonus Compensation paid to the Executive would have received as salary during the three (based on Executive's salary then 3) years prior to the termination date, but in effect not event less than $1,691,665, (iii) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, (iv) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if greaterlater, until his surviving spouse dies, (v) continued participation by each of Executive's Reference Salary) had ’s dependent children in the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to endCompany’s medical, dental and vision health plan, at the times such amounts would have been paid Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event vi) immediate vesting of Executive's death during ’s existing stock options, and (vii) at the payment periodExecutive’s option, the Company shall not transfer to the Executive the ownership of any and all life insurance policies insuring the Executive’s life that the Company has purchased and the Executive shall thereafter be obligated liable for all payments due on such policies.
(e) If the Executive terminates his employment because of a Change in Control, the Executive shall be entitled to pay any subsequent such amountsreceive the following: (i) a lump sum payment equal to 2.99 times the sum of the Executive’s then current Base Salary, but in no event less than $764,124 (ii) a lump sum payment equal to 2.99 times the amount equal to the average of the Bonus Compensation paid to the Executive during the three (3) years prior to the termination date, but in no event less than $1,011,615, (iii) continued participation by Executive and his spouse in the Company’s medical, dental and vision health plan, at the Company’s expense, until Executive dies or, if later, until his surviving spouse dies, (iv) continued participation by each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, until each child is no longer a dependent, as defined by the applicable plan, (v) immediate vesting of Executive’s existing stock options, (vi) any accumulations and benefits to which Employee is entitled under the Nonqualified Supplemental Retirement Benefit Plan and a Nonqualified Deferred Compensation Plan, and (vii) at the Executive’s option, the Company shall pay transfer to the Executive the ownership of any and all life insurance policies insuring the Executive's estate ’s life that the Company has purchased and the Executive shall thereafter be liable for all payments due on such policies. Upon entitlement, all sums due hereunder will be payable in cash or by official bank check within thirty (30) days following termination of the Executive’s employment. Notwithstanding anything to the contrary contained herein, in the event that any portion of the payments or such benefits received or to be received by the Executive, together with any other payments received by him, whether paid or payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company or any other person or persons entity, would cause, either directly or indirectly, an “excess parachute payment” to exist within the meaning of said Section 280G of the Internal Revenue Code, the payments hereunder shall be reduced until no portion of the payments would fail to be deductible by reason of being an “excess parachute payment”. In the event that any dispute arises as Executive may designate in a written instrument signed to whether an “excess parachute payment” exists, the appropriate calculations shall be made by him the Company’s regularly employed independent public auditors and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company in writing within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date for payment of notice such severance payment, and the Company will warrant to the Company Executive the accuracy of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in calculations and the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofinformation on which they are based.
(ef) If Executive shall not be required to mitigate the Employment Period ends early pursuant amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
(g) Notwithstanding anything herein to paragraph 5 hereof on account the contrary, with respect to any right to a payment that constitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code, any payment to be made upon the Executive’s termination of employment shall be delayed until the first day of the seventh month following the Participant’s termination of employment if the Participant is a Termination by Executive “specified employee” within the meaning of Section 409A of the Code and the Company’s 409A Policy, if any.
(h) Notwithstanding anything herein to the contrary, with Advance Notice, the Company shall make no further payments respect to Executive except as contemplated in (a) any right to a payment that (i) is to be made under this Section 5 based on the continued participation by Executive, his spouse and each of Executive’s dependent children in the Company’s medical, dental and vision health plan, at the Company’s expense, and (ii) aboveconstitutes a “nonqualified deferred compensation plan” subject to Section 409A of the Code, any such payment shall be made in accordance with Treasury Regulation §1.409A-3(i)(1)(iv). Expenses eligible for reimbursements and in-kind benefits shall be determined based on the coverage provided by the relevant plan maintained by the Company for eligible employees, and any payments shall be made only for the period or periods specified in this Section 5. Any amount of expenses eligible for reimbursement or in-kind benefit provided during a taxable year shall not affect the expenses eligible for reimbursement or in-kind benefits to be provided in any other taxable year. The reimbursement of any eligible expense shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense was incurred. The right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), expense reimbursements or benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy, but are unused as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment employment, (iii) any benefits to which Executive is entitled under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to endthe Employment Period ends, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments); provided, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any such subsequent such amounts, but the Company shall pay amounts to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) or, if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the date of this Agreement. It is expressly understood that the Company's payment obligations under this subparagraph (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in subparagraph (a) ), clauses (i), (ii) and (iiiii) above.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in Section 6(c) below, at the Date of Termination, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the date on Date of Termination, in accordance with the Reimbursement Rules, where applicable, (ii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive’s employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this Section 6(a) it is then scheduled to end pursuant to paragraph 5 hereofand in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reasonDate of Termination, Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveSection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall in addition to the Company shall pay benefits and payments described in Section 6(a) be entitled to Executive amounts the following:
(i) a payment equal to one (1) times the amounts Executive’s annual Base Salary in effect immediately prior to the Date of Termination (the “Severance Amount”). Subject to delay if required under Section 11(a), the Severance Amount shall be paid in a lump sum no later than ten (10) business days after the Date of Termination;
(ii) a pro-rata portion of Executive’s annual bonus as set forth in Section 4(c)(i) for the performance year in which Executive’s termination occurs (the “Pro-Rata Bonus Amount”). The Pro-Rata Bonus Amount shall be determined by multiplying the amount Executive would have received based upon performance had employment continued through the end of the performance year and the performance criteria had been achieved at target by a fraction, the numerator of which is the number of days Executive was employed by the Company during the performance year and the denominator of which is the total number of days in the performance year. Subject to delay if required under Section 11(a), the Pro-Rata Bonus Amount shall be paid in a lump sum no later than ten (10) business days after the Date of Termination;
(iii) all unvested time-vested restricted stock grants shall automatically vest and become non-forfeitable as salary of the date the Release Agreement becomes irrevocable;
(iv) notwithstanding anything to the contrary in any award agreement or plan, all unvested performance-vested performance share or performance-vested restricted stock grants shall continue to vest and become non-forfeitable based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee actual performance of the Company, less in the same manner and at the same time as if Executive remained employed by the Company;
(v) continued participation in the Company’s medical and dental plans, on the same basis as active employees participate in such payments)plans, until the earlier of (1) Executive’s eligibility for any such coverage under another employer’s medical or dental insurance plans or (2) the date that is one (1) year after the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for any premiums paid by Executive to obtain benefits (for Executive and his dependents) equivalent to the benefits he is entitled to receive under the Company’s benefit plans. Executive agrees that the period of coverage under such plans (or the period of reimbursement if participation is barred) shall count against the plans’ obligation to provide continuation coverage pursuant to COBRA; and
(vi) to the extent not theretofore paid or provided, any other amounts or benefits required to be obligated paid or provided or which the Executive is eligible to pay receive under any subsequent such amountsplan, but program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall pay be hereinafter referred to as the “Other Benefits”).
(d) If Executive's estate (or such person or persons as ’s employment is terminated on account of a Change in Control Termination, subject to Section 6(e) below, Executive may designate in a written instrument signed by him and delivered shall be entitled to the Company prior to his deathpayments and benefits described in Section 6(c) either except that:
(i) amounts during the remainder of the payment period called for in Section 6(c)(i) shall be equal to one-half two (2) times the Executive’s annual Base Salary in effect immediately prior to the Date of the amounts which would have been paid to Executive but for his death or Termination;
(ii) if so elected by the payee(stime period described in Section 6(c)(v) by written notice shall be eighteen (18) months instead of one (1) year; and
(iii) notwithstanding anything to the Company within the period contrary in any equity award agreement or plan, all unvested time-vested awards (whether to be settled in cash or stock) shall automatically vest and become non-forfeitable as of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement becomes irrevocable.
(e) If The Company shall have no obligation to make any of the Employment Period ends early payments, or deliver any of the benefits, in accordance with Section 6(c) (other than clause (vi) therein) or Section 6(d) if Executive declines to sign and return a Release Agreement, or revokes the Release Agreement or the Release Agreement does not become effective, within the sixty (60) calendar days after the Date of Termination. Notwithstanding any other provision of this Agreement, any payments to be made, or benefits to be delivered, under this Agreement (other than the payments required to be made by the Company pursuant to paragraph 5 hereof Sections 6(a) and 6(c)(vi)) prior to Executive’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination, shall be accumulated and paid in a lump sum or delivered after Executive’s execution of the Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, on account the sixtieth (60th) day after the Date of a Termination by Executive with Advance Notice(except that, if such 60-day period spans more than one (1) calendar year, and the payments or benefits constitute deferred compensation subject to Section 409A, the Company payments shall make no further payments be paid, and the benefits delivered, in the subsequent calendar year).
(f) Executive is not required to Executive except as contemplated mitigate the amount of any payment or benefit provided for in (a) (i) and (ii) abovethis Agreement by seeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the end of the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) equity awards, expense reimbursements or other benefits other than: and Executive shall be entitled to (i) any salary Base Salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued but are unused, as of the end of the Employment Period, (ii) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company and excluding, except as hereinafter provided in subparagraph 6(b), any severance pay program or policy of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"). In addition, Executive shall be entitled to the succeeding provisions of this paragraph 6additional benefits and amounts described in subparagraph 6(b), in the circumstance described in such subparagraph.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Without Cause or a Termination by By Executive for For Good Reason, the Company shall continue to pay to Executive amounts equal her Base Salary at the time of such termination for a period of:
(i) eighteen (18) months following such termination if the termination occurs prior to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee third anniversary of the CompanyEffective Date, less and
(ii) one (1) year following such payments); provided, however, that in termination if the event termination occurs on or after the third anniversary of Executive's death during the payment periodEffective Date. In addition, the Company shall not be obligated make a lump sum payment to pay any subsequent such amounts, but Executive in an amount equal to the Company shall pay to product of Executive's estate (or such person or persons as Executive may designate in Target Bonus Amount, multiplied by a written instrument signed by him and delivered to fraction, the Company prior to his death) either (i) amounts during numerator of which is the remainder number of days which have elapsed from January 1 of the payment period equal calendar year in which the Termination Without Cause or a Termination By Executive For Good Reason occurs through the date of such termination, and the denominator of which is 365. Further, Executive shall be entitled to one-half continue to participate, at the Company's cost, in the Company's medical, dental, disability and life insurance plans until the earlier of the amounts which would have been paid to Executive but (A) Executive's eligibility for his death any such coverage under another employer's or any other medical, dental or life insurance plans or (iiB) if so elected by one (1) year following the payee(s) by written notice to the Company within termination of Executive's employment. Executive agrees that the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent coverage under such plans shall count against such plans' obligation to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice provide continuation coverage pursuant to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such electionCOBRA. It is expressly understood that the Company's payment obligations and Executive's participation rights under this subparagraph (db) shall cease in the event Executive breaches any of his the agreements in paragraph 7, 9 or 10 7 hereof.
(ec) If Executive shall not be required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If At the Date of Termination, regardless of the reason for termination of employment, Executive will be entitled to (i) any Base Salary that has accrued but is unpaid, any annual bonus that has been earned for the fiscal year prior to the year in which the Date of Termination occurs, but is unpaid, any reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period ends on Period, which amount shall be paid in a lump sum in cash within 30 days of the date on Date of Termination, (ii) any plan benefits that by their terms extend beyond termination of Executive's employment (but only to the extent provided in any such benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in paragraph 6, any Company severance pay program or policy) and (without iii) any extension thereofbenefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA"). Except as specifically described in this subparagraph 6(a) it is then scheduled to end pursuant to and in the succeeding subparagraphs of this paragraph 5 hereof6 (under the circumstances described in those succeeding subparagraphs), or if from and after the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Date of Termination Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof employment terminates on account of Executive's death Retirement or death, Disability, Voluntary Termination, Termination for DisabilityCause or the end of the Employment Period in accordance with Section 5(a), the Company shall will make no further payments to Executive except as contemplated in (a) (i) and (ii) abovesubparagraph 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, Executive shall be entitled to the Company shall pay following:
(1) payment equal to two times Executive's annual base salary in effect immediately prior to the Date of Termination, plus two times the cash bonus amount received by the Executive amounts for the fiscal year prior to the year of the termination of Executive's employment, payable in twenty-four equal monthly installments commencing six months after the Date of Termination;
(2) a lump sum payment, payable six months after the Date of Termination, in cash in an amount equal to the amounts Executive contributions the Company would have received as made (excluding any salary reduction contributions pursuant to an election of the Executive) for the benefit of the Executive to the Company's qualified salaried 401(k) plan (based on if the Company is making matching contributions or other contributions to the salaried 401(k) plan at the time of the Executive's salary then in effect ortermination), if greater, Executive's Reference Salaryassuming (i) had the Employment Period remained in effect until the date on which (without any extension thereof) it was then scheduled to end, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated continued as an employee of the Company for a period of two years beginning on the Executive's Date of Termination, and (ii) the Executive during such period contributed six percent of his base salary (as in effect immediately prior to the Date of Termination) to the 401(k) plan;
(3) continued participation in the Company's medical and dental plans, less on the same basis as active employees participate in such payments)plans, until the earlier of (i) Executive's eligibility for any such coverage under another employer's or any other medical or dental insurance plans or (ii) the second anniversary of the Date of Termination; provided, however, except that in the event of Executive's death during the payment periodthat participation in any such plan is barred, the Company shall not be obligated reimburse Executive on a monthly basis for any premiums paid by Executive to pay any subsequent such amounts, but the Company shall pay to Executive's estate obtain benefits (or such person or persons as for Executive may designate in a written instrument signed by him and delivered his dependents) equivalent to the Company prior benefits he is entitled to his death) either (i) amounts during receive under the remainder of the payment period equal to one-half of the amounts which would have been paid to Company's benefit plans. Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within agrees that the period of sixty coverage under such plans (60or the period of reimbursement if participation is barred) days after shall count against the date plans' obligation to provide continuation coverage pursuant to COBRA;
(4) up to $25,000 in aggregate outplacement services to be used within one year of Executive's deaththe Date of Termination, a lump sum amount equivalent the scope and provider of which shall be selected by Executive in his sole discretion; and
(5) to the discounted present value of such reduced amountsextent not theretofore paid or provided, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount any other amounts or benefits required to be paid on a date no later than thirty (30) days following or provided or which the date Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of notice to the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this "Other Benefits").
(d) The Company shall cease have no obligation to make any payments in accordance with subparagraph 6(c) if Executive declines to sign and return a Release Agreement or revokes the Release Agreement within the time provided in the event Executive breaches any of his agreements in paragraph 7, 9 or 10 hereofRelease Agreement.
(e) If Executive is not required to mitigate the Employment Period ends early pursuant to paragraph 5 hereof on account amount of a Termination any payment or benefit provided for in this Agreement by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveseeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If the Employment Period ends on the date on which (without any extension thereof) it is then scheduled to end pursuant to paragraph 5 hereof, or if the Employment Period ends early pursuant to paragraph 5 hereof for any reason, Executive shall cease to have any rights to salary, bonus (if any) ), options, expense reimbursements or other benefits other than: (i) any salary which has accrued but is unpaid, and any reimbursable expenses which have been incurred but are unpaid, and any unexpired vacation days which have accrued under the Company's vacation policy but are unused, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP any option theretofore granted to Executive or any other benefit plan in which Executive has participated as an employee of the Company) any option rights or plan benefits which by their terms extend beyond termination of Executive's employment employment, (iii) any benefits to which Executive is entitled under Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended ("COBRA") and (iiiiv) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof on account of Executive's death death, Retirement or Termination for Disability, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that amount Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's employment or the date thirty days after the Company's notice to Executive of such termination. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination without Cause or a Termination by Executive for Good Reason, the Company shall pay to Executive amounts equal to the amounts Executive would have received as salary (based on Executive's salary then in effect or, if greater, Executive's Reference Salary) had the Employment Period remained in effect until for a period of twenty-four (24) months after the date on last day of the month in which (without any extension thereof) it was then scheduled to endthe Employment Period ends, at the times such amounts would have been paid (in the event Executive is entitled during the payment period to any payments under any disability benefit plan or the like in which Executive has participated as an employee of the Company, less such payments), plus, for the year in which such termination occurs and the following year, the amount the Executive would have received as an annual bonus if the Division and the Company performed at bonus target for the year in which such termination occurs, such amount payable first at the time the annual bonus normally would be paid for the year in which such termination occurs and again at the time the annual bonus normally would be paid for the following year; providedPROVIDED, howeverHOWEVER, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay amounts to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) or, if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, shall pay to such payee(s) a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois the Company's principal lending bank in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following the date of notice to the Company of such election. In addition, the Company shall reimburse Executive (net after taxes on the receipt of such reimbursement) for any premiums paid by Executive for health insurance provided to Executive (for Executive and his dependents) by the Company subsequent to the end of the Employment Period pursuant to the requirements of COBRA as in effect on the date of this Agreement. The Company shall make no further payments to Executive except as contemplated in (a)(i), (ii) and (iii) above. It is expressly understood that the Company's payment obligations under this (d) shall cease in the event Executive breaches any of his agreements in paragraph 7, 9 7 or 10 8 hereof.
(e) If the Employment Period ends early pursuant to paragraph 5 hereof on account of a Termination by Executive with Advance Notice, the Company shall make no further payments to Executive except as contemplated in (a) a)(i), (iii) and (iiiii) above.
(f) Executive shall not be required to mitigate the amount of any payment or benefit provided for in this Agreement by seeking other employment or otherwise.
Appears in 1 contract
Post-Employment Period Payments. (a) If Except as otherwise provided in Section 6(c) below, at the Date of Termination, Executive will be entitled to: (i) any Base Salary that has accrued but is unpaid as of the end of the Employment Period ends on Period, which shall be paid at the date on which time specified in Section 4(a) above; (without ii) any extension thereof) it is then scheduled to properly reimbursable expenses that have been incurred but are unpaid, and any unexpired vacation days that have accrued under the Company’s vacation policy but are unused, as of the end pursuant to paragraph 5 hereof, or if of the Employment Period ends early pursuant Period, which amount shall be paid in a lump sum in cash within thirty (30) calendar days of the Date of Termination, in accordance with the Reimbursement Rules, where applicable, (iii) any plan benefits accrued before the termination plus the coverage described in Section 4(g)(ii) plus any benefits that by their terms extend beyond termination of Executive’s employment (but only to paragraph 5 hereof for the extent provided in any reasonsuch benefit plan in which Executive has participated as a Company employee and excluding, except as hereinafter provided in Section 6, any Company severance pay program or policy), which shall be paid in accordance with the terms of the applicable plans, and (iv) any benefits to which Executive is entitled in accordance with Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act of 1974, as amended (“COBRA”). Except as specifically described in this Section 6(a) and in the succeeding subsections of this Section 6 (under the circumstances described in those succeeding subsections), from and after the Date of Termination. Executive shall cease to have any rights to salary, bonus (if any) bonus, expense reimbursements or other compensation and benefits other than: (i) any salary which has accrued but is unpaidfrom the Company, and any expenses which have been incurred but are unpaid, as of the end of the Employment Period, (ii) (but only to the extent provided in the SERP BHI or any other benefit plan in which Executive has participated as an employee of the Company) any plan benefits which by their terms extend beyond termination of Executive's employment and (iii) any other amount(s) payable pursuant to the succeeding provisions of this paragraph 6subsidiaries or affiliates.
(b) If the Employment Period ends pursuant to paragraph 5 hereof on Executive's sixty-fifth birthday, or if the Employment Period ends early pursuant to paragraph 5 hereof ’s employment terminates on account of Executive's death Retirement ’s death, Disability, Voluntary Termination, or Termination for DisabilityCause in accordance with Section 5(a), the Company shall will provide no further benefit and make no further payments to Executive except as contemplated in (a) (i) and (ii) aboveSection 6(a).
(c) If the Employment Period ends early pursuant to paragraph 5 hereof on account of Termination for Cause, the Company shall pay Executive an amount equal to that Executive would have received as salary (based on Executive's salary then in effect) had the Employment Period remained in effect until the later of the effective date of the Company's termination of Executive's ’s employment or the date thirty days after the Company's notice to Executive of such termination.
(d) If the Employment Period ends early pursuant to paragraph 5 hereof terminates on account of a Termination without Cause or a Termination by Executive for Good Reason, neither of which qualifies as a Change in Control Termination, subject to Section 6(e) below, Executive shall, in addition to the Company benefits and payments described in Section 6(a), be entitled to any earned but unpaid annual bonus for the fiscal year prior to the year in which the Date of Termination occurs (which shall pay be paid at the time specified in Section 4(b)(i) above) and, contingent upon Executive’s execution of a Separation and Release Agreement in a form substantially similar, but subject to Executive amounts modifications consistent with legal or market changes, to that attached as Exhibit A to this Agreement and defined in Section 8(s), the following:
(i) a payment equal to Executive’s annual Base Salary in effect immediately prior to the Date of Termination (the ‘‘Severance Amount” as defined in Section 8(t)). The Severance Amount, up to an amount equal to the amounts “Separation Pay”, as defined in Section 8(u), shall be paid in a lump sum no later than ten (10) business days after the effective date of the Separation and Release Agreement. The Severance Amount in excess of the Separation Pay, if any, shall be paid in a lump sum on the earlier to occur of the first business day following the date which is six (6) months after the Date of Termination or the tenth (10th) business day following the date of Executive’s death, provided that, in the case of death, no amount will be paid prior to the first regular pay day following the effective date of the Separation and Release Agreement, at which time any missed payments will also be paid;
(ii) a pro-rata portion of Executive’s annual bonus as set forth in Section 4(b) for the performance year in which Executive’s termination occurs (the “Pro-Rata Bonus Amount”). The Pro-Rata Bonus Amount shall be determined by multiplying the amount Executive would have received as salary (based on Executive's salary then in effect orupon performance had employment continued through the end of the performance year and the performance criteria had been achieved at target by a fraction, if greater, Executive's Reference Salary) had the Employment Period remained in effect until numerator of which is the date on number of days Executive was employed by the Company during the performance year and the denominator of which (without any extension thereof) it was then scheduled to end, at is the times such amounts would have been paid (total number of days in the event Executive is entitled during performance year. Subject to delay if required under Section 11(a), the payment period to any payments under any disability benefit plan or the like Pro-Rata Bonus Amount shall be paid in which Executive has participated as an employee of the Companya lump sum, less such payments); providedapplicable payroll deductions, however, that in the event of Executive's death during the payment period, the Company shall not be obligated to pay any subsequent such amounts, but the Company shall pay to Executive's estate (or such person or persons as Executive may designate in a written instrument signed by him and delivered to the Company prior to his death) either (i) amounts during the remainder of the payment period equal to one-half of the amounts which would have been paid to Executive but for his death or (ii) if so elected by the payee(s) by written notice to the Company within the period of sixty (60) days after the date of Executive's death, a lump sum amount equivalent to the discounted present value of such reduced amounts, discounted at the publicly announced reference rate for commercial lending of Bank of America Illinois in effect at the date of notice to the Company of such election, with said amount to be paid on a date no later than thirty (30) days following after the Date of Termination;
(iii) continued participation in the Company’s medical and dental plans, on the same basis as active employees participate in such plans, until the earlier of (1) Executive’s eligibility for any such coverage under another employer’s or any other medical or dental insurance plans or (2) the date that is one (1) year after the Date of notice Termination; except that in the event that participation in any such plan is permitted only by Executive electing continued participation through COBRA, or if participation in any such plan would result in adverse tax consequences to Executive or the Company, then assuming Executive timely makes an election under COBRA, the Company shall reimburse Executive on a monthly basis in accordance with the Reimbursement Rules for the difference between any COBRA premiums paid by Executive (for Executive and Executive’s dependents) and the premiums an active employee would pay for such coverage. Executive agrees that the period of coverage under such plans (or the period of reimbursement if participation is through COBRA) shall count against the plans’ obligation to provide continuation coverage pursuant to COBRA; and
(iv) to the extent not theretofore paid or provided, any other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company of (such election. It is expressly understood that other amounts and benefits shall be hereinafter referred to as the Company's payment obligations under this “Other Benefits”).
(d) If Executive’s employment is terminated on account of a Change in Control Termination, subject to Section 6(e) below, Executive shall cease be entitled to the payments and benefits described in Section 6(c), contingent upon Executive’s execution of the event Executive breaches Separation and Release Agreement, attached as Exhibit A, except that:
(i) the payment called for in Section 6(c)(i) shall be equal to two (2) times the Executive’s annual Base Salary, less applicable payroll deductions;
(ii) the time period described in Section 6(c)(iii) shall be eighteen (18) months instead of one (1) year; and
(iii) unless expressly provided otherwise to the contrary in any equity award or plan, all unvested time-vested awards (whether settled in cash or stock) shall automatically vest and become non-forfeitable as of his agreements in paragraph 7, 9 or 10 hereofthe date the Separation Agreement becomes irrevocable.
(e) If The Company shall have no obligation to make any of the Employment Period ends early payments, or deliver any of the benefits, in accordance with Section 6(c) or Section 6(d) if Executive declines to sign and return the Separation and Release Agreement or revokes the Separation and Release Agreement or the Separation and Release Agreement does not become effective within the sixty (60) calendar day period after the Date of Termination. Notwithstanding any other provision of this Agreement, any payments to be made, or benefits to be delivered, under this Agreement (other than the payments required to be made by the Company pursuant to paragraph 5 hereof on account Sections 6(a) or 6(c)(v)) prior to Executive’s execution of the Separation and Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination, shall be accumulated and paid in a lump sum or delivered after Executive’s execution of the Separation and Release Agreement and the expiration of the applicable revocation period, without Executive having elected to revoke same, within the 60-day period after the Date of Termination by Executive with Advance Notice(except that, if such 60-day period spans more than one (1) calendar year, and the payments or benefits constitute deferred compensation subject to Section 409A, the Company payments shall make no further payments be paid, and the benefits delivered, in the subsequent calendar year).
(f) Executive is not required to Executive except as contemplated mitigate the amount of any payment or benefit provided for in (a) (i) and (ii) abovethis Agreement by seeking other employment or otherwise.
Appears in 1 contract
