Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)): (i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and (ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and (iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and (iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and (v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and (vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and (vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and (viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 3 contracts
Samples: Employment Agreement (Ndchealth Corp), Employment Agreement (Ndchealth Corp), Employment Agreement (Ndchealth Corp)
Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viix) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive’s business expenses for which reimbursement has been requested pursuant to the extent Company’s expense reimbursement policy but which have not theretofore been reimbursed before Executive’s applicable Date of Termination and (C) Executive’s Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the Committee but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months if the Applicable Pay Date is the Delayed Pay Date, the Company will pay Executive on the Delayed Pay Date a lump sum equal to the amount of the Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) Executive would have earned if Executive had been continuously employed by Company from the Date of Termination until the Delayed Pay Date or (B) if the remaining term of Executive’s Employment Period (Applicable Pay Date is the “Normal Severance Period”)Immediate Pay Date, the Company will continue to pay Executive an amount equal to his monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) until payments begin under § 8(a)(iii) without any duplication of payments between this § 8(a)(ii) and § 8(a)(iii); and
(iii) commencing on the seven (7)-month anniversary of the date Executive has a Separation from Service, the Company will continue to pay Executive an amount equal to Executive’s monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures Company’s then standard payroll practices for a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coveragetwelve (12) consecutive months; and
(iv) as additional severance (and not later than 30 in lieu of any bonus for the fiscal year in which the Date of Termination occurs), the Company will pay Executive a lump sum equal to one and one-half (1½) times the amount of Executive’s Target Bonus Opportunity (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) as in effect immediately prior to such reduction in Executive’s Target Bonus Opportunity) on the date that is nine (9) months and one (1) day after the date of Executive’s Separation from Service; and
(v) the Company shall pay to Executive a lump sum cash amount within sixty (60) days after following the Date of Termination equal to the product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company’s group health plan for purposes of continuation coverage under § 4980B of the Code (“COBRA”) with respect to the maximum level of coverage in effect for Executive and his spouse and dependents as of immediately prior to the Date of Termination, ; and
(vi) the Company will pay Executive will be paid a pro-rated annual bonus for the fiscal-year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination in relation to and the prior denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance objectives under targets are in fact certified by the Committee to have been met, and such bonus shall be paid in a single lump sum cash payment no later than two and one-half (2½) months after the end of the fiscal year in which the bonus is earned; provided further that if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Target Bonus Opportunity, such prorated bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will shall be reduced by the amount (if any) of the calculated based on Executive’s Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the CompanyExecutive’s Target Bonus Opportunity; and
(vvii) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“Restricted Stock”) ), granted to Executive following the Effective Date and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(viviii) all of Executive’s options to acquire Company Common Stock of the Company, stock or appreciation rights in with respect to shares of Company Common Stock of the Company and similar Company stock-based awards (“Options”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the twenty-four (24-) month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to Executive following the Effective Date and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(viii)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the Date of Termination, or (C) the date that is the tenth (10th) anniversary of the original date of grant of the Option; and
(x) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements (“Performance Restricted Stock”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one-half (2½) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Normal Severance PeriodPerformance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (2½) months after the end of the Performance Cycle (or any later date required by § 409A of the Code); provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(v)(1) and not this § 8(a)(x); and
(viiixi) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.”);
Appears in 3 contracts
Samples: Employment Agreement (Global Payments Inc), Employment Agreement (Global Payments Inc), Employment Agreement (Global Payments Inc)
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for twelve (12) months (such period being referred to hereinafter as the “Severance Period”). The payments shall occur in installments in the same amount in effect immediately prior to such termination and during at the same regular payment intervals as the Executive’s Employment Base Salary was being paid on January 1, 2011 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. §1.409A-2(b)(2)(iii). Installments which in the aggregate do not exceed Executive’s Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executive’s termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executive’s termination of employment. In addition, the Executive shall be entitled to continue to participate for a period of twelve (12) months following such termination in all employee welfare benefit plans that the Company provides and continues to provide generally to its executive employees (or, if the Executive is not entitled to participate in any such plan under the terms thereof, in a comparable substitute arrangement provided by the Company) provided, however, that for the first six months following the Executive’s termination of employment, the Executive shall pay the premiums of any welfare benefit plans to the extent that the payment of such premiums by the Company would have constituted gross income to the Executive. The Company shall reimburse the Executive for any premiums or other expenses incurred by the Executive with respect to his participation and that of any of his dependents in any such employee benefit welfare plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executive’s death during the Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executive’s estate. If, during the Severance Period, the Executive breaches his obligations under Section 7 of this Agreement, the Company terminates may, upon written notice to the Executive, terminate the Severance Period and cease to make any further payments or provide any benefits described in this Section 5.2.1. The Company’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (“Release”) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.1.
Appears in 2 contracts
Samples: Employment Agreement (Hardinge Inc), Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for the greater of (i) 6 months or (ii) the remainder of the Employment Term (such period being referred to hereinafter as the “Severance Period”), at such intervals as the same would have been paid had the Executive remained in the active service of the Company. In addition, if the Executive elects to continue his health insurance coverage in the applicable Company plan pursuant to the Consolidated Omnibus Reconciliation Act of 1985, as amended, then the Company shall pay for such coverage during the Severance Period, provided, however, that (i) the Executive shall be responsible for paying such portion of the applicable health insurance premium as the Company requires from executive employees under the applicable Company plan, and (ii) the Company’s obligation to pay for such coverage during the Severance Period will terminate if, during the Severance Period, the Executive becomes eligible to receive health insurance coverage from another source at a cost to the Executive that is equal to, or less than, the Executive’s Employment cost under the Company Plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executive’s death during the Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executive’s estate. If, during the Severance Period, the Executive breaches his obligations under Section 8 of this Agreement, the Company terminates may, upon written notice to the Executive, terminate the Severance Period and cease to make any further payments or provide any benefits described in this Section 5.2.1. The Company’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (“Release”) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.1.
Appears in 2 contracts
Samples: Employment Agreement (Hardinge Inc), Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination If the Executive’s employment is terminated prior to a “Change in Control” (as such term is defined in Section 4(c) hereof), either by the Company without Cause or by the Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to shall make the payments and provide the benefits described in clauses (ii) through (vii) below, only if to the Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):as follows:
(i) the The Company will shall pay to the Executive in a lump sum in cash within 30 10 days after following the Date of Employment Termination the sum of Date:
(A) the Executive’s Base Salary current base salary through the Employment Termination Date of Termination to the extent not theretofore paid, and ;
(B) any accrued vacation pay due the Executive as of the Employment Termination Date to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)paid; and
(C) any expense reimbursement due the Executive as of the Employment Termination Date to the extent not theretofore paid.
(ii) for Provided that the longer of six months or until Executive becomes employed with a subsequent employerhas executed and delivered to the Company, but and has not revoked, the general release in no event to exceed substantially the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period form attached hereto as Attachment A (the “Normal Severance PeriodRelease”), the Company will continue to pay shall make the following payments and shall provide the following benefits, provided that if the Executive directly or indirectly engages in conduct that constitutes an amount equal to his monthly Base SalaryAssociation (as defined in Section 12(b)(iv)(D) hereof), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such the following payments will cease if Executive violates any and to provide the following benefits shall immediately terminate:
(A) an amount equal to the sum of two times the Restrictive Covenants (Executive’s Base Salary and one times the Executive’s target bonus potential amount of 50% of Base Salary for the fiscal year during which the termination of employment occurs, which amount shall, except as defined otherwise provided in Section 13(b) of this Agreement) and fails to remedy such violation 10 hereof, be paid to the satisfaction of Executive by the Board within 10 days of notice of such violation; andCompany in 24 equal monthly installments commencing with the month following the month in which the Employment Termination Date occurs;
(iiiB) during the Normal Severance Periodamount of any annual cash bonus earned by the Executive and payable, if and but not yet paid, for the fiscal year prior to the extent Executive timely elects COBRA continuation coveragefiscal year in which the Employment Termination Date occurs, with the Company will pay for the full premium entire amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage bonus being determined in accordance with the procedures applicable formula or the achievement of the Company generally corporate objectives applicable to all qualified beneficiaries receiving COBRA continuation coverage; andthe Executive and his direct reports, which bonus shall be paid to the Executive by the Company at the time that bonuses for such fiscal year are paid to the other senior executives of the Company;
(ivC) not later than 30 days after if the Employment Termination Date occurs during the second six months of Terminationthe Company’s fiscal year, the amount of any annual cash bonus earned by the Executive will be paid a bonus for the fiscal year in which the Employment Termination Date occurs, determined following the end of such fiscal year, with the entire amount of such bonus being determined in accordance with the applicable formula or the achievement of the corporate objectives applicable to the Executive and his direct reports, which bonus amount shall be (1) multiplied by a fraction the numerator of which is the number of days that have elapsed during the fiscal year in which the Employment Termination Date occurs in a lump sum cash amount equal to 100% and including the Employment Termination Date and the denominator of his Bonus Opportunity which is 365, and (prorated through 2) paid to the Date of Termination) adjusted up or down Executive by reference to his year-to-date performance the Company at the Date of Termination in relation time that bonuses for such fiscal year are paid to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock other senior executives of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of but if the Employment Termination Date of Termination will become immediately vested as of occurs during the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock first six months of the Company’s fiscal year, no bonus amount shall be payable for such fiscal year;
(D) the Executive’s unexercisable stock appreciation rights in Common Stock options, unvested shares of restricted stock and unvested performance shares shall vest as follows:
(1) performance shares that have been fully earned but are subject to restrictions on vesting based on time shall vest immediately;
(2) performance shares that have not been earned and are subject to restrictions on vesting based on the achievement of performance goals shall vest based on the achievement of such performance goals, such achievement to be determined following the end of the performance period, with the number of such performance shares determined to have vested being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such performance shares and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such performance shares and the date of the end of the performance period, which performance shares shall be paid to the Executive by the Company at the time that performance shares for such performance period are paid to the other senior executives of the Company;
(3) unvested shares of restricted stock and similar Company stock-based awards unexercisable stock options that are subject to cliff vesting shall vest prorata, with the number of such unvested shares of restricted stock or shares subject to such unexercisable stock options being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Termination Date and denominator of which is the number of days between the date of grant of such award and the date on which shares of restricted stock or stock options are scheduled to xxxxx xxxx;
(“Options”4) unvested shares of restricted stock and unexercisable stock options that would have become vested vest in installments shall vest prorata, with the number of shares in each unvested installment being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such award and the date on which such installment is scheduled to vest;
(E) reimbursement of the Executive for the amount expended by lapse the Executive for the cost of time) within medical insurance coverage under COBRA for the 24Executive and the Executive’s dependents during the 18-month period following the Date of Employment Termination had Executive remained employed during such period will become immediately vested as of the Date of TerminationDate; and
(viiF) notwithstanding for the provisions remainder of the applicable Option agreement, all of Executive’s vested but unexercised Options as lifetime, provided that the Executive has been employed by the Company for at least one year, the Executive shall be entitled to the normal associate discount in effect from time to time applicable to active associates of the Date Company or its successors, provided that the benefit of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date such discount shall not exceed $25,000 in any calendar year and no portion of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) unused discount for any calendar year may be carried over to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefitsany succeeding calendar year.
Appears in 2 contracts
Samples: Employment Agreement (Saks Inc), Employment Agreement (Saks Inc)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)Termination; and
(ii) for the longer shortest of six 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period employer (the “Normal Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly bi-weekly installments or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) Stock held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 2412-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiv) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi8(c)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viiivii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 2 contracts
Samples: Employment Agreement (Ndchealth Corp), Employment Agreement (Ndchealth Corp)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination In the event that Employee’s employment with the Company is involuntarily terminated by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment any reason other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates in the event Employee resigns his employment for Good Reason within a period pursuant to Section 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case Employee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following the date of 90 days after the occurrence of the event giving rise to Good Reasonthis Agreement, then (and with respect Employee shall be entitled to the payments and benefits described in clauses (ii) through (vii) below, only if Executive provided that Employee timely executes a and does not revoke the Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement13) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; andRelease first becomes effective:
(iiii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive Employee shall receive a cash payment equal to the full premium amount; providedone (1) times Employee’s Annual Base Salary, however that the Company’s obligation such amount to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined be paid in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage regular installments in accordance with the procedures Company’s normal payroll practices over a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
twelve (iv12) not later than 30 days after the Date of Terminationmonths following Employee’s Termination Date, Executive will provided, that no such installments shall be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation prior to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected later to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier occur of (A) the original expiration first regular Company payroll date of occurring on or after the Option, or date on which the Release becoming effective and irrevocable and (B) solely if the 90th day period during which Employee may consider and revoke the Release spans two calendar years, the first regular Company payroll date occurring in the latter such calendar year (in either case, the “First Payroll Date”), with any installments otherwise payable prior to the First Payroll Date instead paid on the First Payroll Date (without interest thereon).
(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Employee’s target annual bonus for the performance year in which the Employee’s Termination Date occurs, payable in a lump sum payment on the First Payroll Date.
(iii) The Company shall, for a period of eighteen (18) months following the end Employee’s Termination Date, pay the Employee each month an amount equal to the monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the Normal Severance Period; and
eighteen (viii18)‑month period. All Company payments under this Section 9(a)(iii) to the Employee can be used for any purpose and will be reported as taxable payments.
(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of the date on which the Release becomes effective and irrevocable (and for clarity, shall remain outstanding and eligible to vest on such date). Such Equity Awards shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.
(v) With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of performance objective(s), to the extent not theretofore paid that the applicable performance period has expired on or providedbefore Employee’s Termination Date, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company will timely pay during the twelve (12) month period following Employee’s Termination Date shall become fully vested and exercisable as of the date on which the Release becomes effective and irrevocable (and for clarity, shall remain outstanding and eligible to vest on such date). Such Equity Award shall continue to be governed by and exercised, settled or provide paid in accordance with the terms of the applicable award agreement.
(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Executive his Other BenefitsEmployee as of Employee’s Termination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment of amounts described in this Section 9(a)(vi) are not conditioned upon the Release becoming effective unless the applicable benefit plan or program provides otherwise.
Appears in 2 contracts
Samples: Executive Employment and Non Disclosure, Non Competition, and Invention Assignment Agreement (Cognizant Technology Solutions Corp), Executive Employment and Non Disclosure, Non Competition, and Invention Assignment Agreement (Cognizant Technology Solutions Corp)
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for the greater of (i) 6 months or (ii) the remainder of the Employment Term (such period being referred to hereinafter as the “Severance Period”). The payments shall occur in installments in the same amount and during at the same regular payment intervals as the Executive’s Employment Base Salary was being paid on January 1, 2009 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. §1.409A-2(b)(2)(iii). Installments which in the aggregate do not exceed Executive’s Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executive’s termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executive’s termination of employment. In addition, if the Executive elects to continue his health insurance coverage in the applicable Company plan pursuant to the Consolidated Omnibus Reconciliation Act of 1985, as amended, then the Company shall pay for such coverage during the Severance Period, provided, however, that (i) the Executive shall be responsible for paying such portion of the applicable health insurance premium as the Company requires from executive employees under the applicable Company plan, and (ii) the Company’s obligation to pay for such coverage during the Severance Period will terminate if, during the Severance Period, the Company terminates Executive becomes eligible to receive health insurance coverage from another source at a cost to the Executive that is equal to, or less than, the Executive’s cost under the Company Plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment other than except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executive’s death during the Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for Poor Performancethis purpose by the Executive or, Cause if no such beneficiary is specifically designated, to the Executive’s estate. If, during the Severance Period, the Executive breaches his obligations under Section 8 of this Agreement, the Company may, upon written notice to the Executive, terminate the Severance Period and cease to make any further payments or Disability, or Executive terminates employment for Good Reason provide any benefits described in this Section 5.2.1. The Company’s obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (“Release”) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.1.
Appears in 2 contracts
Samples: Employment Agreement (Hardinge Inc), Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for twelve (12) months (such period being referred to hereinafter as the “Severance Period”). The payments shall occur in installments in the same amount in effect immediately prior to such termination and during at the same regular payment intervals as the Executive’s Employment Base Salary was being paid on January 1, 2011 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. §1.409A-2(b)(2)(iii). Installments which in the aggregate do not exceed Executive’s Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executive’s termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executive’s termination of employment. In addition, the Executive shall be entitled to continue to participate for a period of twelve (12) months following such termination in all employee welfare benefit plans that the Company provides and continues to provide generally to its executive employees (or, if the Executive is not entitled to participate in any such plan under the terms thereof, in a comparable substitute arrangement provided by the Company) provided, however, that for the first six months following the Executive’s termination of employment, the Executive shall pay the premiums of any welfare benefit plans to the extent that the payment of such premiums by the Company would have constituted gross income to the Executive. The Company shall reimburse the Executive for any premiums or other expenses incurred by the Executive with respect to his participation and that of any of his dependents in any such employee benefit welfare plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executive’s death during the Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executive’s estate. If, during the Severance Period, the Executive breaches his obligations under Section 7 of this Agreement, the Company terminates may, upon written notice to the Executive, terminate the Severance Period and cease to make any further payments or provide any benefits described in this Section 5.2.1. The Company’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (“Release”) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.1.
Appears in 2 contracts
Samples: Employment Agreement (Hardinge Inc), Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination In the event that Employee’s employment with the Company is involuntarily terminated by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment any reason other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates in the event Employee resigns his employment for Good Reason within a period pursuant to Section 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case Employee’s employment termination becomes effective before any Change in Control (as defined in Section 9(e) below) has occurred following the date of 90 days after the occurrence of the event giving rise to Good Reasonthis Agreement, then (and with respect Employee shall be entitled to the payments and benefits described in clauses (ii) through (vii) below, only if Executive provided that Employee executes a and does not revoke the Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement11) and fails to remedy such violation the Release first becomes effective:
(i) Employee shall receive continued payment of the Employee’s Annual Base Salary, paid in regular installments in accordance with the Company’s normal payroll practices, over a period of twenty-two (22) months, commencing on or as soon as practicable after the date the Release becomes effective and within thirty-five days following Employee’s Termination Date.
(ii) The Company shall, for a period of twelve (12) months following the date of Employee’s Termination of Employment, pay the Employee each month an amount equal to the satisfaction monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents, are eligible for and timely elect to receive COBRA healthcare continuation coverage and provided further that the payments specified under this Section 9(a)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the Board within 10 days of notice of such violation; and12-month period.
(iii) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the Company and would have vested had Employee remained employed by the Company during the Normal Severance Periodtwelve (12) month period following Employee’s Termination Date shall automatically become fully vested and exercisable, if as applicable, as of Employee’s Termination Date. Such Equity Awards shall continue to be governed by and to the extent Executive timely elects COBRA continuation coverageexercised, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage settled or paid in accordance with the procedures terms of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; andaward agreement.
(iv) not later than 30 days after the Date With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of Terminationperformance objective(s), Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however extent that the bonus applicable performance period has expired on or before Employee’s Termination Date, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.
(v) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment of amounts described in this Section 8(b)(iv9(a)(v) will be reduced by are not conditioned upon the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of Release becoming effective unless the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, benefit plan or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefitsprogram provides otherwise.
Appears in 1 contract
Samples: Executive Employment Agreement (Cognizant Technology Solutions Corp)
Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiviii) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive’s business expenses for which reimbursement has been requested pursuant to the extent Company’s expense reimbursement policy but which have not theretofore been reimbursed before Executive’s applicable Date of Termination and (C) Executive’s Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the Committee but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of Company will pay to Executive a lump sum cash amount on the date that is six (6) months or until and one (1) day after the date on which Executive becomes employed with has a subsequent employer, but in no event Separation from Service equal to exceed the lesser sum of (Ai) 18 months from eighteen (18) times Executive’s monthly Base Salary (as in effect on the Date of Termination or or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary), and (Bii) one and one-half (1½) times the remaining term amount of Executive’s Employment Period Target Bonus Opportunity (as in effect on the “Normal Severance Period”)Date of Termination or, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Target Bonus Opportunity, as defined in Section 13(b) of this Agreement) and fails effect immediately prior to remedy such violation to the satisfaction of the Board within 10 days of notice of such violationreduction in Executive’s Target Bonus Opportunity); and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will shall pay for to Executive a lump sum cash amount on the full premium amount of such COBRA continuation coverage date that is six (6) months and will impute taxable income to one (1) day after the date on which Executive has a Separation from Service equal to the full premium amount; provided, however that product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company’s obligation to provide such benefits will cease if Executive violates any group health plan for purposes of continuation coverage under § 4980B of the Restrictive Covenants Code (as defined in Section 13(b“COBRA”) of this Agreement) and fails to remedy such violation with respect to the satisfaction maximum level of the Board within 10 days coverage in effect for Executive and his spouse and dependents as of notice of such violation; provided further, that immediately prior to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost Date of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageTermination; and
(iv) not later than 30 days after the Date of Termination, Company will pay Executive will be paid a pro-rated annual bonus for the fiscal-year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination and the denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance targets are in relation fact certified by the Committee to have been met (or, if the payment date occurs prior to the date of such certification, such pro-rated bonus shall be payable based on the expected financial performance for such fiscal year, as determined as of the latest practicable date prior established performance objectives under to the payment date), and such bonus shall be paid in a single lump sum cash payment on the date that is six (6) months and one (1) day after the date on which Executive has a Separation from Service; provided further that if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Target Bonus Opportunity, such prorated bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will shall be reduced by the amount (if any) of the calculated based on Executive’s Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the CompanyExecutive’s Target Bonus Opportunity; and
(v) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“Restricted Stock”) ), granted to Executive following the Effective Date and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(vi) all of Executive’s options to acquire Company Common Stock of the Company, stock or appreciation rights in with respect to shares of Company Common Stock of the Company and similar Company stock-based awards (“Options”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the twenty-four (24-) month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to Executive following the Effective Date and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(vi)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the end Date of Termination, or (C) the date that is the tenth (10th) anniversary of the Normal Severance Periodoriginal date of grant of the Option; and
(viii) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements (“Performance Restricted Stock”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one-half (2½) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Performance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (2½) months after the end of the Performance Cycle (or any later date required by § 409A of the Code); provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(v)(1) and not this § 8(a)(viii); and
(ix) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.”);
Appears in 1 contract
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executives employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for eighteen (18) months (such period being referred to hereinafter as the Severance Period). The payments shall occur in installments in the same amount in effect immediately prior to such termination and at the same regular payment intervals as the Executives Base Salary was being paid on January 1, 2011 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. 1.409A-2(b)(2)(iii). Installments which in the aggregate do not exceed Executives Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executives termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executives termination of employment. In addition, the Executive shall be entitled to continue to participate for a period of eighteen (18) months following such termination in all employee welfare benefit plans that the Company provides and continues to provide generally to its executive employees (or, if the Executive is not entitled to participate in any such plan under the terms thereof, in a comparable substitute arrangement provided by the Company) provided, however, that for the first six months following the Executives termination of employment, the Executive shall pay the premiums of any welfare benefit plans to the extent that the payment of such premiums by the Company would have constituted gross income to the Executive. The Company shall reimburse the Executive for any premiums or other expenses incurred by the Executive with respect to his participation and that of any of his dependents in any such employee benefit welfare plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executives death during the Executive’s Employment Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executives estate. If, during the Severance Period, the Executive breaches his obligations under Section 7 of this Agreement, the Company terminates may, upon written notice to the Executive’s employment other than for Poor Performance, Cause terminate the Severance Period and cease to make any further payments or Disability, or Executive terminates employment for Good Reason provide any benefits described in this Section 5.2.1. The Companys obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (Release) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.1.
Appears in 1 contract
Samples: Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executives employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for twelve (12) months (such period being referred to hereinafter as the Severance Period). The payments shall occur in installments in the same amount in effect immediately prior to such termination and at the same regular payment intervals as the Executives Base Salary was being paid on January 1, 2011 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. 1.409A-2(b)(2)(iii). Installments which in the aggregate do not exceed Executives Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executives termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executives termination of employment. In addition, the Executive shall be entitled to continue to participate for a period of twelve (12) months following such termination in all employee welfare benefit plans that the Company provides and continues to provide generally to its executive employees (or, if the Executive is not entitled to participate in any such plan under the terms thereof, in a comparable substitute arrangement provided by the Company) provided, however, that for the first six months following the Executives termination of employment, the Executive shall pay the premiums of any welfare benefit plans to the extent that the payment of such premiums by the Company would have constituted gross income to the Executive. The Company shall reimburse the Executive for any premiums or other expenses incurred by the Executive with respect to his participation and that of any of his dependents in any such employee benefit welfare plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executives death during the Executive’s Employment Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executives estate. If, during the Severance Period, the Executive breaches his obligations under Section 7 of this Agreement, the Company terminates may, upon written notice to the Executive’s employment other than for Poor Performance, Cause terminate the Severance Period and cease to make any further payments or Disability, or Executive terminates employment for Good Reason provide any benefits described in this Section 5.2.1. The Companys obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (Release) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.1.
Appears in 1 contract
Samples: Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiix) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); , and
(ii) for on the longer six (6) month anniversary of six months or until the Date of Termination (the “Pay Date”), the Company shall pay the Executive becomes employed with a subsequent employer, but in no event lump sum equal to exceed the lesser amount of (A) 18 months the Executive’s Base Salary from the Date of Termination or until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (Bas defined in Section 13 of this Agreement) and failed to remedy such violation to the remaining term satisfaction of Executive’s Employment Period the Board within 10 days of notice of such violation;
(the “Normal Severance Period”)iii) thereafter, for up to twelve (12) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will shall cease if Executive becomes employed with a subsequent employer or earns an income in connection with a non-executive board position provided such income is reasonable anticipated to be more than $100,000 (See section 17 (h)) for the then current calendar year or earns an income from any other non-employee activity provided such non-employee compensation (plus the value of any equity received) is reasonably anticipated to be more than $50,000 for the then current calendar year, or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iiiiv) during for a period of eighteen (18) months after the Normal Severance PeriodDate of Termination, Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the eighteen (18) such month period, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive timely elects COBRA continuation coverage, will pay the entire cost of such coverage for the first six (6) months after the Date of Termination and the Company will pay reimburse Executive for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide share of such benefits will cease if Executive violates any costs on the six-month anniversary of the Restrictive Covenants (Executive’s “separation from service” as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction 409A of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageCode; and
(ivv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash an amount equal to 100not less than 50% of his then current potential Bonus Opportunity at target levels; and
(prorated through the Date of Terminationvi) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form all grants of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vivii) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiviii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi8(a)(vii) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of the Normal Severance PeriodTermination; and
(viiiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his 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 (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor ----------------------------------------------------------------- Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates ----------- shall terminate Executive’s 's employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)Termination; and
(ii) for the longer shorter of six 12 months after the Date of Termination or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period employer (the “Normal "Poor Performance Severance Period”"), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s 's payroll practices from time to time; provided, however, however that the Company’s 's obligation to make or continue such payments will shall cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b13(a) of this Agreement) and fails to remedy such violation to the reasonable satisfaction of the Board within 10 days of written notice of such violation; and
(iii) during the Normal Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income shall continue benefits to the Executive and/or Executive's family at least equal to those which would have been provided to them in accordance with the full premium amountWelfare Plans described in Section 5(c) of this Agreement if Executive's employment had not been terminated; provided, however that the Company’s 's obligation to provide such benefits will shall cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b13(a) of this Agreement) and fails to remedy such violation to the reasonable satisfaction of the Board within 10 days of written notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash an amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s 's bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv8(a)(iv) will shall be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) Stock held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vi) all of Executive's Options that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s 's vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th 90/th/ day following the end of the Normal later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viix) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive’s business expenses for which reimbursement has been requested pursuant to the extent Company’s expense reimbursement policy but which have not theretofore been reimbursed before Executive’s applicable Date of Termination and (C) Executive’s Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the Committee but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months if the Applicable Pay Date is the Delayed Pay Date, the Company will pay Executive on the Delayed Pay Date a lump sum equal to the amount of the Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) Executive would have earned if Executive had been continuously employed by Company from the Date of Termination until the Delayed Pay Date or (B) if the remaining term of Executive’s Employment Period (Applicable Pay Date is the “Normal Severance Period”)Immediate Pay Date, the Company will continue to pay Executive an amount equal to his her monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) until payments begin under § 8(a)(iii) without any duplication of payments between this § 8(a)(ii) and § 8(a)(iii); and
(iii) commencing on the seven (7)-month anniversary of the date Executive has a Separation from Service, the Company will continue to pay Executive an amount equal to Executive’s monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures Company’s then standard payroll practices for a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coveragetwelve (12) consecutive months; and
(iv) as additional severance (and not later than 30 in lieu of any bonus for the fiscal year in which the Date of Termination occurs), the Company will pay Executive a lump sum equal to one and one-half (1½) times the amount of Executive’s Target Bonus Opportunity (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) as in effect immediately prior to such reduction in Executive’s Target Bonus Opportunity) on the date that is nine (9) months and one (1) day after the date of Executive’s Separation from Service; and
(v) the Company shall pay to Executive a lump sum cash amount within sixty (60) days after following the Date of Termination equal to the product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company’s group health plan for purposes of continuation coverage under § 4980B of the Code (“COBRA”) with respect to the maximum level of coverage in effect for Executive and her spouse and dependents as of immediately prior to the Date of Termination, ; and
(vi) the Company will pay Executive will be paid a pro-rated annual bonus for the fiscal- year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination in relation to and the prior denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance objectives under targets are in fact certified by the Committee to have been met, and such bonus shall be paid in a single lump sum cash payment no later than two and one-half (2½) months after the end of the fiscal year in which the bonus is earned; provided further that if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Target Bonus Opportunity, such prorated bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will shall be reduced by the amount (if any) of the calculated based on Executive’s Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the CompanyExecutive’s Target Bonus Opportunity; and
(vvii) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“Restricted Stock”) ), granted to and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(viviii) all of Executive’s options to acquire Company Common Stock of the Company, stock or appreciation rights in with respect to shares of Company Common Stock of the Company and similar Company stock-based awards (“Options”) granted to and held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the twenty-four (24-) month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(viii)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the Date of Termination, or (C) the date that is the tenth (10th) anniversary of the original date of grant of the Option; and
(x) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements (“Performance Restricted Stock”) granted to and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one- half (2½) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Normal Severance PeriodPerformance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (2½) months after the end of the Performance Cycle (or any later date required by § 409A of the Code); provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(v)(1) and not this § 8(a)(x); and
(viiixi) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.Benefits”);
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and;
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his her monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and;
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his her Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and;
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his her Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his her year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and;
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and;
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his her Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination Resignation by Executive for Good ReasonReason after the First Anniversary Date; Termination by the Company Other Than for Poor Performance, Cause or DisabilityDisability after the First Anniversary Date. If, prior to a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, Disability after the First Anniversary Date or Executive terminates employment shall deliver a Notice of Termination for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good ReasonFirst Anniversary Date, then (and with respect to the payments and benefits described in clauses (ii) through (viiix) below, only if Executive executes a has complied with the provisions of this Agreement, including but not limited to the provisions of Sections 10 and 13 and only if within 60 days after the Date of Termination Executive shall have executed the Release in substantially and the form of Exhibit A hereto (the “Release”)applicable revocation period shall have expired):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for on the longer Six-Month Pay Date, the Company shall pay Executive a lump sum equal to the amount of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months Executive’s Base Salary from the Date of Termination until the Six-Month Pay Date: provided, however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (as defined in Section 13 of this Agreement) and failed to remedy such violation to the satisfaction of the Committee within 10 days of notice of such violation or has violated the provisions of Section 10 of this Agreement. If Executive has performed services of any kind for any Competing Person or for any Person who has a parent, affiliate, or subsidiary who is a Competing Person between the Date of Termination and the Six-Month Pay Date, then the amount otherwise due shall be multiplied by a fraction, the numerator of which is the number of days that elapsed from the Date of Termination until his first date of service for such Person (Bwhich cannot exceed 180) and the remaining term denominator of Executive’s Employment Period which is 180; and
(iii) thereafter, for up to twelve (12) additional months following the “Normal Severance Period”)Six-Month Pay Date, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will shall cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board Committee within 10 days of notice of such violation; and
(iii) during violation or violates the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount provisions of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease Section 10 of this Agreement or if Executive violates performs services of any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided furtherkind for any Competing Person or for any Person who has a parent, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Periodaffiliate, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageor subsidiary who is a Competing Person; and
(iv) not later than 30 days for a period of eighteen (18) months after the Date of Termination, Executive will be paid a bonus shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay (and report as taxable income to Executive) all premiums for such COBRA coverage for Executive and his covered dependents for the year in which eighteen (18) month period, provided, however, that the Date obligation of Termination occurs in a lump sum cash amount equal the Company to 100% of his Bonus Opportunity (prorated through pay the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the prior established performance objectives under Executive’s bonus plan for extent that such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced health care coverage is provided by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Companynew employer; and
(v) the Company shall pay to Executive, on the later of the Six-Month Pay Date or the normal payment date for such bonus payments, a pro-rated annual bonus with respect to any ongoing annual bonus performance period that commenced prior to the Date of Termination (such bonus shall be calculated based on actual performance through the end of the performance period and then multiplied by a fraction, the numerator of which is the number of full months in the fiscal year preceding the Date of Termination and the denominator of which is 12; provided that such bonus shall be paid only if the pre-established performance targets are in fact certified by the Committee in the ordinary course to have been met on a basis consistent with the Chief Executive Officer and the other senior executives under the Plan; and
(vi) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) Stock held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vivii) any other performance-based incentive awards held by Executive on the Date of Termination shall continue in effect until the normal payment date for such awards, at which time such awards will be paid out, on the later of (a) the normal payment date for such awards or (b) the Six Month Pay Date, on a pro-rated basis equal to (i) the award Executive would have earned, if any, based on actual financial performance through the end of the applicable performance period as if Executive had remained employed during the entire performance period, times (ii) a fraction, the numerator of which is the number of full months in the performance period preceding the Date of Termination and the denominator of which is the number of full months in the performance period; provided that such award shall be made only if the pre-established performance targets are in fact certified by the Committee in the ordinary course to have been met on a basis consistent with the Chief Executive Officer and the other senior executives under the Plan; and
(viii) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) Options that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi8(a)(viii) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of Termination, or (C) the date that is the 10th anniversary of the Normal Severance Periodoriginal date of grant of the Option; and
(viiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiv) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer shorter of six nine (9) months after the Date of Termination or until Executive becomes employed with a subsequent employer, but earns an income from becoming an owner, partner, or an independent contractor of any other entity, or in no the event to exceed the lesser of (A) 18 months Employee earns an income from the Date of Termination becoming a consultant, starting a business, or (B) the remaining term of Executive’s Employment Period otherwise, (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will shall cease if Executive violates any of the Restrictive Covenants (as defined set forth in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viix) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive’s business expenses for which reimbursement has been requested pursuant to the extent Company’s expense reimbursement policy but which have not theretofore been reimbursed before Executive’s applicable Date of Termination and (C) Executive’s Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the Committee but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months if the Applicable Pay Date is the Delayed Pay Date, the Company will pay Executive on the Delayed Pay Date a lump sum equal to the amount of the Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) Executive would have earned if Executive had been continuously employed by Company from the Date of Termination until the Delayed Pay Date or (B) if the remaining term of Executive’s Employment Period (Applicable Pay Date is the “Normal Severance Period”)Immediate Pay Date, the Company will continue to pay Executive an amount equal to his monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) until payments begin under § 8(a)(iii) without any duplication of payments between this § 8(a)(ii) and § 8(a)(iii); and
(iii) commencing on the seven (7)-month anniversary of the date Executive has a Separation from Service, the Company will continue to pay Executive an amount equal to Executive’s monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures Company’s then standard payroll practices for a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageeighteen (18) consecutive months; and
(iv) as additional severance (and not later than 30 in lieu of any bonus for the fiscal year in which the Date of Termination occurs), the Company will pay Executive a lump sum equal to two (2) times the amount of Executive’s Target Bonus Opportunity (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) as in effect immediately prior to such reduction in Executive’s Target Bonus Opportunity) on the date that is nine (9) months and one (1) day after the date of Executive’s Separation from Service; and
(v) the Company shall pay to Executive a lump sum cash amount within sixty (60) days after following the Date of Termination equal to the product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company’s group health plan for purposes of continuation coverage under Section 4980B of the Code (“COBRA”) with respect to the maximum level of coverage in effect for Executive and his spouse and dependents as of immediately prior to the Date of Termination, ; and
(vi) the Company will pay Executive will be paid a pro-rated annual bonus for the fiscal-year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination in relation to and the prior denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance objectives under targets are in fact certified by the Committee to have been met, and such bonus shall be paid in a single lump sum cash payment no later than two and one-half (21⁄2) months after the end of the fiscal year in which the bonus is earned; provided further that if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Target Bonus Opportunity, such prorated bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will shall be reduced by the amount (if any) of the calculated based on Executive’s Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the CompanyExecutive’s Target Bonus Opportunity; and
(vvii) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“Restricted Stock”) ), granted to Executive following the Effective Date and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(viviii) all of Executive’s options to acquire Company Common Stock of the Company, stock or appreciation rights in with respect to shares of Company Common Stock of the Company and similar Company stock-based awards (“Options”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 24twenty-month four (24)-month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to Executive following the Effective Date and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(viii)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the Date of Termination, or (C) the date that is the tenth (10th) anniversary of the original date of grant of the Option; and
(x) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements (“Performance Restricted Stock”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one-half (21⁄2) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Normal Severance PeriodPerformance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (21⁄2) months after the end of the Performance Cycle (or any later date required by § 409A of the Code); provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(iv)(1) and not this § 8(a)(x); and
(viiixi) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.”);
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)Termination; and
(ii) for on the longer six month anniversary of six months or until the Date of Termination (the “Pay Date”), the Company shall pay the Executive becomes employed with a subsequent employer, but in no event lump sum equal to exceed the lesser amount of (A) 18 months the Executive’s Base Salary from the Date of Termination or until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (Bas defined in Section 13 of this Agreement) and failed to remedy such violation to the remaining term satisfaction of Executive’s Employment Period the Board within 10 days of notice of such violation;
(the “Normal Severance Period”)iii) thereafter, for up to six (6) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments shall cease if Executive becomes employed with a subsequent employer or earns an income which will cease be reportable as non-employee compensation on a 1099 form provided such non-employee compensation is reasonably anticipated to be more than $50,000 a year or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days for a period of eighteen (18) months after the Date of Termination, Executive will be paid a bonus shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the year in which first twelve (12) such months, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive will pay the entire cost of such coverage for the first six (6) months after the Date of Termination occurs in a lump sum cash amount equal to 100% and the Company will reimburse Executive for the Company’s share of his Bonus Opportunity (prorated through such costs on the Date six-month anniversary of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described “separation from service” as defined in this Section 8(b)(iv) will be reduced by the amount (if any) 409A of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the CompanyCode; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) Stock held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s Options that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi8(b)(v) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of the Normal Severance PeriodTermination; and
(viii) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for the greater of (i) twelve (12) months or (ii) the remainder of the Employment Term (such period being referred to hereinafter as the “Severance Period”). The payments shall occur in installments in the same amount in effect immediately prior to such termination and during at the same regular payment intervals as the Executive’s Employment Base Salary was being paid on January 1, 2011 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. §1.409A-2(b)(2)(iii). Installments which in the aggregate do not exceed Executive’s Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executive’s termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executive’s termination of employment. In addition, the Executive shall be entitled to continue to participate for a period of twelve (12) months following such termination in all employee welfare benefit plans that the Company provides and continues to provide generally to its executive employees (or, if the Executive is not entitled to participate in any such plan under the terms thereof, in a comparable substitute arrangement provided by the Company) provided, however, that for the first six months following the Executive’s termination of employment, the Executive shall pay the premiums of any welfare benefit plans to the extent that the payment of such premiums by the Company would have constituted gross income to the Executive. The Company shall reimburse the Executive for any premiums or other expenses incurred by the Executive with respect to his participation and that of any of his dependents in any such employee benefit welfare plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executive’s death during the Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executive’s estate. If, during the Severance Period, the Executive breaches his obligations under Section 7 of this Agreement, the Company terminates may, upon written notice to the Executive, terminate the Severance Period and cease to make any further payments or provide any benefits described in this Section 5.2.1. The Company’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (“Release”) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.1.
Appears in 1 contract
Samples: Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)Termination; and
(ii) for the longer shortest of six 12 months after the Date of Termination, the remaining term of Executive’s Employment Period, or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period employer (the “Normal Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly bi-weekly installments or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date initial grant of Termination, Restricted Stock made to Executive will be paid a bonus for the year in which the Date of Termination occurs connection with his employment as referenced in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of TerminationSection 5(b)(ii) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination hereof will become immediately vested as of the Date of Termination; and
(vi) , and all other grants of Executive’s options to acquire Common Restricted Stock held by Executive as of the Company, stock appreciation rights in Common Stock Date of the Company and similar Company stock-based awards (“Options”) Termination that would have become vested (by lapse of time) within the 2412-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiv) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi8(c)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and
(viiivii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s 's employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viix) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “"Release”)") within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s 's Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive's business expenses for which reimbursement has been requested pursuant to the extent Company's expense reimbursement policy but which have not theretofore been reimbursed before Executive's applicable Date of Termination and (C) Executive's Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the CEO but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “"Accrued Obligations”"); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months if the Applicable Pay Date is the Delayed Pay Date, the Company will pay Executive on the Delayed Pay Date a lump sum equal to the amount of the Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive's Base Salary, as in effect immediately prior to such reduction in Base Salary) Executive would have earned if Executive had been continuously employed by Company from the Date of Termination until the Delayed Pay Date or (B) if the remaining term of Executive’s Employment Period (Applicable Pay Date is the “Normal Severance Period”)Immediate Pay Date, the Company will continue to pay Executive an amount equal to his monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive's Base Salary, as in effect immediately prior to such reduction in Base Salary) until payments begin under § 8(a)(iii) without any duplication of payments between this § 8(a)(ii) and § 8(a)(iii); and
(iii) commencing on the seven (7)-month anniversary of the date Executive has a Separation from Service, the Company will continue to pay Executive an amount equal to Executive's monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive's Base Salary, as in effect immediately prior to such reduction in Base Salary), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures Company's then standard payroll practices for a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coveragetwelve (12) consecutive months; and
(iv) as additional severance (and not later than 30 in lieu of any bonus for the fiscal year in which the Date of Termination occurs), the Company will pay Executive a lump sum equal to one and one-half (½) times the amount of Executive's Target Bonus Opportunity (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) as in effect immediately prior to such reduction in Executive's Target Bonus Opportunity) on the date that is nine (9) months and one (1) day after the date of Executive's Separation from Service; and
(v) the Company shall pay to Executive a lump sum cash amount within sixty (60) days after following the Date of Termination equal to the product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company's group health plan for purposes of continuation coverage under § 4980B of the Code ("COBRA") with respect to the maximum level of coverage in effect for Executive and his spouse and dependents as of immediately prior to the Date of Termination, and
(vi) the Company will pay Executive will be paid a pro-rated annual bonus for the fiscal year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination in relation to and the prior denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance objectives under Executive’s targets are in fact certified by the CEO to have been met, and such bonus plan for such year; provided, however that shall be paid in a single lump sum cash payment no later than two and one-half (2½) months after the end of the fiscal year in which the bonus payment described is earned; provided further that if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in this Section 8(b)(iv) will Executive's Target Bonus Opportunity, such prorated bonus shall be reduced by the amount (if any) of the calculated based on Executive's Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the Company; Executive's Target Bonus Opportunity, and
(vvii) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“"Restricted Stock”) "), granted to Executive following the Effective Date and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(viviii) all of Executive’s options to acquire Company Common Stock or appreciation rights with respect to shares of Company Common Stock ("Options") granted to Executive following the Effective Date and held by Executive as of the Company, stock appreciation rights in Common Stock Date of the Company and similar Company stock-based awards (“Options”) Termination that would have become vested (by lapse of time) within the twenty-four (24-) month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to Executive following the Effective Date and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(viii)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the Date of Termination, or (C) the date that is the tenth (10th) anniversary of the original date of grant of the Option; and
(x) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements ("Performance Restricted Stock") granted to Executive following the Effective Date and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one-half (2½) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Normal Severance PeriodPerformance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (2½) months after the end of the Performance Cycle (or any later date required by § 409A of the Code); provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(v)(1) and not this § 8(a)(x); and
(viiixi) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.");
Appears in 1 contract
Prior to a Change in Control. Termination If the Executive’s employment is terminated prior to a “Change in Control” (as such term is defined in Section 4(c) hereof), either by the Company without Cause or by the Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to shall make the payments and provide the benefits described in clauses (ii) through (vii) below, only if to the Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):as follows:
(i) the The Company will shall pay to the Executive in a lump sum in cash within 30 10 days after following the Date of Employment Termination the sum of Date:
(A) the Executive’s Base Salary current base salary through the Employment Termination Date of Termination to the extent not theretofore paid, and ;
(B) any accrued vacation pay due the Executive as of the Employment Termination Date to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)paid; and
(C) any expense reimbursement due the Executive as of the Employment Termination Date to the extent not theretofore paid.
(ii) for Provided that the longer of six months or until Executive becomes employed with a subsequent employerhas executed and delivered to the Company, but and has not revoked, the general release in no event to exceed substantially the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period form attached hereto as Attachment A (the “Normal Severance PeriodRelease”), the Company will continue to pay shall make the following payments and shall provide the following benefits, provided that if the Executive directly or indirectly engages in conduct that constitutes an amount equal to his monthly Base SalaryAssociation (as defined in Section 12(b)(iv)(D) hereof), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such the following payments will cease if Executive violates any and to provide the following benefits shall immediately terminate:
(A) an amount equal to the sum of two times the Restrictive Covenants (Executive’s Base Salary and one times the Executive’s target bonus potential amount of 75% of Base Salary for the fiscal year during which the termination of employment occurs, which amount shall, except as defined otherwise provided in Section 13(b) of this Agreement) and fails to remedy such violation 10 hereof, be paid to the satisfaction of Executive by the Board within 10 days of notice of such violation; andCompany in 24 equal monthly installments commencing with the month following the month in which the Employment Termination Date occurs;
(iiiB) during the Normal Severance Periodamount of any annual cash bonus earned by the Executive and payable, if and but not yet paid, for the fiscal year prior to the extent Executive timely elects COBRA continuation coveragefiscal year in which the Employment Termination Date occurs, with the Company will pay for the full premium entire amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage bonus being determined in accordance with the procedures applicable formula or the achievement of the Company generally corporate objectives applicable to all qualified beneficiaries receiving COBRA continuation coverage; andthe Executive and his direct reports, which bonus shall be paid to the Executive by the Company at the time that bonuses for such fiscal year are paid to the other senior executives of the Company;
(ivC) not later than 30 days after if the Employment Termination Date occurs during the second six months of Terminationthe Company’s fiscal year, the amount of any annual cash bonus earned by the Executive will be paid a bonus for the fiscal year in which the Employment Termination Date occurs, determined following the end of such fiscal year, with the entire amount of such bonus being determined in accordance with the applicable formula or the achievement of the corporate objectives applicable to the Executive and his direct reports, which bonus amount shall be (1) multiplied by a fraction the numerator of which is the number of days that have elapsed during the fiscal year in which the Employment Termination Date occurs in a lump sum cash amount equal to 100% and including the Employment Termination Date and the denominator of his Bonus Opportunity which is 365, and (prorated through 2) paid to the Date of Termination) adjusted up or down Executive by reference to his year-to-date performance the Company at the Date of Termination in relation time that bonuses for such fiscal year are paid to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock other senior executives of the Company; andbut if the Employment Termination Date occurs during the first six months of the Company’s fiscal year, no bonus amount shall be payable for such fiscal year;
(vD) all grants the Executive’s unexercisable stock options, unvested shares of restricted stock, restricted stock units unvested performance shares and similar Company stock-unvested Special Equity Awards shall vest as follows:
(1) performance shares that have been fully earned but are subject to restrictions on vesting based awards on time shall vest immediately;
(“Restricted Stock”2) held by Executive as performance shares that have not been earned and are subject to restrictions on vesting based on the achievement of performance goals shall vest based on the achievement of such performance goals, such achievement to be determined following the end of the performance period, with the number of such performance shares determined to have vested being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such performance shares and the Employment Termination Date and the denominator of Termination will become immediately vested as which is the number of days between the date of grant of such performance shares and the date of the Date end of Termination; and
(vi) all of Executive’s options the performance period, which performance shares shall be paid to acquire Common Stock the Executive by the Company at the time that performance shares for such performance period are paid to the other senior executives of the Company, stock appreciation rights in Common Stock ;
(3) the Special Equity Awards shall vest prorata through the end of the Company fiscal year in which the Employment Termination Date occurs, with the number of shares in each unvested installment being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and similar Company stock-based awards the Employment Termination Date and the denominator of which is the number of days between the date of grant of such award and the date on which such installment is scheduled to vest;
(“Options”4) unvested shares of restricted stock and unexercisable stock options that would have become vested are subject to cliff vesting shall vest prorata, with the number of such unvested shares of restricted stock or shares subject to such unexercisable stock options being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Date and denominator of which is the number of days between the date of grant of such award and the date on which shares of restricted stock or stock options are scheduled to xxxxx xxxx;
(5) unvested shares of restricted stock and unexercisable stock options that vest in installments shall vest prorata, with the number of shares in each unvested installment being multiplied by lapse a fraction, the numerator of timewhich is the number of days between the date of grant of such award and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such award and the date on which such installment is scheduled to vest;
(E) within reimbursement of the 24Executive for the amount expended by the Executive for the cost of medical insurance coverage under COBRA for the Executive and the Executive’s dependents during the 18-month period following the Date of Employment Termination had Executive remained employed during such period will become immediately vested as of the Date of TerminationDate; and
(viiF) notwithstanding for the provisions remainder of the applicable Option agreement, all of Executive’s vested but unexercised Options as lifetime, the Executive shall be entitled to the normal associate discount in effect from time to time applicable to active associates of the Date Company or its successors, provided that the benefit of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date such discount shall not exceed $100,000 in any calendar year and no portion of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) unused discount for any calendar year may be carried over to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefitsany succeeding calendar year.
Appears in 1 contract
Samples: Employment Agreement (Saks Inc)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viivi) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)Termination; and
(ii) for the longer shorter of six (6) months after the Date of Termination or until Executive becomes employed with a subsequent employer, but earns an income from becoming an owner, partner, or an independent contractor of any other entity, or in no the event to exceed the lesser of (A) 18 months Employee earns an income from the Date of Termination becoming a consultant, starting a business, or (B) the remaining term of Executive’s Employment Period otherwise, (the “Normal Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will shall cease if Executive violates any of the Restrictive Covenants (as defined set forth in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income shall continue benefits to the Executive and/or Executive’s family at least equal to those which would have been provided to them in accordance with the full premium amountWelfare Plans described in Section 5(c) of this Agreement if Executive’s employment had not been terminated; provided, however that the Company’s obligation to provide such benefits will shall cease if Executive violates any of the Restrictive Covenants (as defined set forth in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) Stock held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s Options that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi8(b)(v) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Poor Performance Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiviii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); , and
(ii) for on the longer six (6) month anniversary of six months or until the Date of Termination (the “Pay Date”), the Company shall pay the Executive becomes employed with a subsequent employer, but in no event lump sum equal to exceed the lesser amount of (A) 18 months the Executive’s Base Salary from the Date of Termination or until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (Bas defined in Section 13 of this Agreement) and failed to remedy such violation to the remaining term satisfaction of Executive’s Employment Period the Board within 10 days of notice of such violation;
(the “Normal Severance Period”)iii) thereafter, for up to twelve (12) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments shall cease if Executive becomes employed with a subsequent employer or earns an income which will cease be reportable as non-employee compensation on a 1099 form provided that such non-employee compensation is reasonably anticipated to be more than $50,000 per year or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iiiiv) during for a period of eighteen (18) months after the Normal Severance PeriodDate of Termination, Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the eighteen (18) month period, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive timely elects COBRA continuation coverage, will pay the entire cost of such coverage for the first six (6) months after the Date of Termination and the Company will pay reimburse Executive for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide share of such benefits will cease if Executive violates any costs on the six-month anniversary of the Restrictive Covenants (Executive’s “separation from service” as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction 409A of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageCode; and
(ivv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash an amount equal to 100not less than 50% of his then current potential Bonus Opportunity at target levels; and
(prorated through the Date of Terminationvi) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form all grants of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vivii) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiviii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi8(a)(vi) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of the Normal Severance PeriodTermination; and
(viiiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his 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 (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
Appears in 1 contract
Prior to a Change in Control. Termination If the Executive’s employment is terminated prior to a “Change in Control” (as such term is defined in Section 4(c) hereof), either by the Company without Cause or by the Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to shall make the payments and provide the benefits described in clauses (ii) through (vii) below, only if to the Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):as follows:
(i) the The Company will shall pay to the Executive in a lump sum in cash within 30 10 days after following the Date of Employment Termination the sum of Date:
(A) the Executive’s Base Salary current base salary through the Employment Termination Date of Termination to the extent not theretofore paid, and ;
(B) any accrued vacation pay due the Executive as of the Employment Termination Date to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)paid; and
(C) any expense reimbursement due the Executive as of the Employment Termination Date to the extent not theretofore paid.
(ii) for Provided that the longer of six months or until Executive becomes employed with a subsequent employerhas executed and delivered to the Company, but and has not revoked, the general release in no event to exceed substantially the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period form attached hereto as Attachment A (the “Normal Severance PeriodRelease”), the Company will continue to pay shall make the following payments and shall provide the following benefits, provided that if the Executive directly or indirectly engages in conduct that constitutes an amount equal to his monthly Base SalaryAssociation (as defined in Section 12(b)(iv)(D) hereof), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such the following payments will cease if Executive violates any and to provide the following benefits shall immediately terminate:
(A) an amount equal to the sum of two times the Restrictive Covenants (Executive’s Base Salary and one times the Executive’s target bonus potential amount of [ ]% of Base Salary for the fiscal year during which the termination of employment occurs, which amount shall, except as defined otherwise provided in Section 13(b) of this Agreement) and fails to remedy such violation 10 hereof, be paid to the satisfaction of Executive by the Board within 10 days of notice of such violation; andCompany in 24 equal monthly installments commencing with the month following the month in which the Employment Termination Date occurs;
(iiiB) during the Normal Severance Periodamount of any annual cash bonus earned by the Executive and payable, if and but not yet paid, for the fiscal year prior to the extent Executive timely elects COBRA continuation coveragefiscal year in which the Employment Termination Date occurs, with the Company will pay for the full premium entire amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage bonus being determined in accordance with the procedures applicable formula or the achievement of the Company generally corporate objectives applicable to all qualified beneficiaries receiving COBRA continuation coverage; andthe Executive and his direct reports, which bonus shall be paid to the Executive by the Company at the time that bonuses for such fiscal year are paid to the other senior executives of the Company;
(ivC) not later than 30 days after if the Employment Termination Date occurs during the second six months of Terminationthe Company’s fiscal year, the amount of any annual cash bonus earned by the Executive will be paid a bonus for the fiscal year in which the Employment Termination Date occurs, determined following the end of such fiscal year, with the entire amount of such bonus being determined in accordance with the applicable formula or the achievement of the corporate objectives applicable to the Executive and his direct reports, which bonus amount shall be (1) multiplied by a fraction the numerator of which is the number of days that have elapsed during the fiscal year in which the Employment Termination Date occurs in a lump sum cash amount equal to 100% and including the Employment Termination Date and the denominator of his Bonus Opportunity which is 365, and (prorated through 2) paid to the Date of Termination) adjusted up or down Executive by reference to his year-to-date performance the Company at the Date of Termination in relation time that bonuses for such fiscal year are paid to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock other senior executives of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of but if the Employment Termination Date of Termination will become immediately vested as of occurs during the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock first six months of the Company’s fiscal year, no bonus amount shall be payable for such fiscal year;
(D) the Executive’s unexercisable stock appreciation rights in Common Stock options, unvested shares of restricted stock and unvested performance shares shall vest as follows:
(1) performance shares that have been fully earned but are subject to restrictions on vesting based on time shall vest immediately;
(2) performance shares that have not been earned and are subject to restrictions on vesting based on the achievement of performance goals shall vest based on the achievement of such performance goals, such achievement to be determined following the end of the performance period, with the number of such performance shares determined to have vested being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such performance shares and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such performance shares and the date of the end of the performance period, which performance shares shall be paid to the Executive by the Company at the time that performance shares for such performance period are paid to the other senior executives of the Company;
(3) unvested shares of restricted stock and similar Company stock-based awards unexercisable stock options that are subject to cliff vesting shall vest prorata, with the number of such unvested shares of restricted stock or shares subject to such unexercisable stock options being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Termination Date and denominator of which is the number of days between the date of grant of such award and the date on which shares of restricted stock or stock options are scheduled to xxxxx xxxx;
(“Options”4) unvested shares of restricted stock and unexercisable stock options that would have become vested vest in installments shall vest prorata, with the number of shares in each unvested installment being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such award and the date on which such installment is scheduled to vest;
(E) reimbursement of the Executive for the amount expended by lapse the Executive for the cost of time) within medical insurance coverage under COBRA for the 24Executive and the Executive’s dependents during the 18-month period following the Date of Employment Termination had Executive remained employed during such period will become immediately vested as of the Date of TerminationDate; and
(viiF) notwithstanding for the provisions remainder of the applicable Option agreement, all of Executive’s vested but unexercised Options as lifetime, provided that the Executive has been employed by the Company for at least one year, the Executive shall be entitled to the normal associate discount in effect from time to time applicable to active associates of the Date Company or its successors, provided that the benefit of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date such discount shall not exceed $25,000 in any calendar year and no portion of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) unused discount for any calendar year may be carried over to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefitsany succeeding calendar year.
Appears in 1 contract
Samples: Employment Agreement (Saks Inc)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiix) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)Termination; and
(ii) for on the longer six (6) month anniversary of six months or until the Date of Termination (the “Pay Date”), the Company shall pay the Executive becomes employed with a subsequent employer, but in no event lump sum equal to exceed the lesser amount of (A) 18 months the Executive’s Base Salary from the Date of Termination or until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (Bas defined in Section 13 of this Agreement) and failed to remedy such violation to the remaining term satisfaction of Executive’s Employment Period the Board within 10 days of notice of such violation;
(the “Normal Severance Period”)iii) thereafter, for up to six (6) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will shall cease if Executive becomes employed with a subsequent employer or earns an income in connection with a non-executive board position provided such income is reasonable anticipated to be more than $100,000 (see section 17 (h)) for the then current calendar year or earns an income from any other non-employee activity provided such non-employee compensation (plus the value of any equity received) is reasonably anticipated to be more than $50,000 for the then current calendar year, or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iiiiv) during for a period of eighteen (18) months after the Normal Severance PeriodDate of Termination, Executive shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the first twelve (12) such months, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive timely elects COBRA continuation coverage, will pay the entire cost of such coverage for the first six (6) months after the Date of Termination and the Company will pay reimburse Executive for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide share of such benefits will cease if Executive violates any costs on the six-month anniversary of the Restrictive Covenants (Executive’s “separation from service” as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction 409A of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageCode; and
(ivv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash an amount equal to 100not less than 50% of his then current potential Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Companytarget levels; and
(vvi) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) Stock held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding all of Executive’s Options that would have become vested (by lapse of time) within the provisions 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the applicable Option agreement, Date of Termination; and
(viii) all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi8(b)(vii) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of the Normal Severance PeriodTermination; and
(viiiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination If the Executive’s employment is terminated prior to a “Change in Control” (as such term is defined in Section 4(c) hereof), either by the Company without Cause or by the Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to shall make the payments and provide the benefits described in clauses (ii) through (vii) below, only if to the Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):as follows:
(i) the The Company will shall pay to the Executive in a lump sum in cash within 30 10 days after following the Date of Employment Termination the sum of Date:
(A) the Executive’s Base Salary current base salary through the Employment Termination Date of Termination to the extent not theretofore paid, and ;
(B) any accrued vacation pay due the Executive as of the Employment Termination Date to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)paid; and
(C) any expense reimbursement due the Executive as of the Employment Termination Date to the extent not theretofore paid.
(ii) for Provided that the longer of six months or until Executive becomes employed with a subsequent employerhas executed and delivered to the Company, but and has not revoked, the general release in no event to exceed substantially the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period form attached hereto as Attachment A (the “Normal Severance PeriodRelease”), the Company will continue to pay shall make the following payments and shall provide the following benefits, provided that if the Executive directly or indirectly engages in conduct that constitutes an amount equal to his monthly Base SalaryAssociation (as defined in Section 12(b)(iv)(D) hereof), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such the following payments will cease if Executive violates any and to provide the following benefits shall immediately terminate:
(A) an amount equal to the sum of two times the Restrictive Covenants (Executive’s Base Salary and one times the Executive’s target bonus potential amount of 150% of Base Salary for the fiscal year during which the termination of employment occurs, which amount shall, except as defined otherwise provided in Section 13(b) of this Agreement) and fails to remedy such violation 10 hereof, be paid to the satisfaction of Executive by the Board within 10 days of notice of such violation; andCompany in 24 equal monthly installments commencing with the month following the month in which the Employment Termination Date occurs;
(iiiB) during the Normal Severance Periodamount of any annual cash bonus earned by the Executive and payable, if and but not yet paid, for the fiscal year prior to the extent Executive timely elects COBRA continuation coveragefiscal year in which the Employment Termination Date occurs, with the Company will pay for the full premium entire amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage bonus being determined in accordance with the procedures applicable formula or the achievement of the Company generally corporate objectives applicable to all qualified beneficiaries receiving COBRA continuation coverage; andthe Executive and his direct reports, which bonus shall be paid to the Executive by the Company at the time that bonuses for such fiscal year are paid to the other senior executives of the Company;
(ivC) not later than 30 days after if the Employment Termination Date occurs during the second six months of Terminationthe Company’s fiscal year, the amount of any annual cash bonus earned by the Executive will be paid a bonus for the fiscal year in which the Employment Termination Date occurs, determined following the end of such fiscal year, with the entire amount of such bonus being determined in accordance with the applicable formula or the achievement of the corporate objectives applicable to the Executive and his direct reports, which bonus amount shall be (1) multiplied by a fraction the numerator of which is the number of days that have elapsed during the fiscal year in which the Employment Termination Date occurs in a lump sum cash amount equal to 100% and including the Employment Termination Date and the denominator of his Bonus Opportunity which is 365, and (prorated through 2) paid to the Date of Termination) adjusted up or down Executive by reference to his year-to-date performance the Company at the Date of Termination in relation time that bonuses for such fiscal year are paid to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock other senior executives of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of but if the Employment Termination Date of Termination will become immediately vested as of occurs during the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock first six months of the Company’s fiscal year, no bonus amount shall be payable for such fiscal year;
(D) the Executive’s unexercisable stock appreciation rights in Common Stock options, unvested shares of restricted stock and unvested performance shares shall vest as follows:
(1) performance shares that have been fully earned but are subject to restrictions on vesting based on time shall vest immediately;
(2) performance shares that have not been earned and are subject to restrictions on vesting based on the achievement of performance goals shall vest based on the achievement of such performance goals, such achievement to be determined following the end of the performance period, with the number of such performance shares determined to have vested being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such performance shares and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such performance shares and the date of the end of the performance period, which performance shares shall be paid to the Executive by the Company at the time that performance shares for such performance period are paid to the other senior executives of the Company;
(3) unvested shares of restricted stock and similar Company stock-based awards unexercisable stock options that are subject to cliff vesting shall vest prorata, with the number of such unvested shares of restricted stock or shares subject to such unexercisable stock options being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Date and denominator of which is the number of days between the date of grant of such award and the date on which shares of restricted stock or stock options are scheduled to xxxxx xxxx;
(“Options”4) unvested shares of restricted stock and unexercisable stock options that would have become vested vest in installments shall vest prorata, with the number of shares in each unvested installment being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such award and the date on which such installment is scheduled to vest;
(E) reimbursement of the Executive for the amount expended by lapse the Executive for the cost of time) within medical insurance coverage under COBRA for the 24Executive and the Executive’s dependents during the 18-month period following the Date of Employment Termination had Executive remained employed during such period will become immediately vested as of the Date of TerminationDate; and
(viiF) notwithstanding for the provisions remainder of the applicable Option agreement, all of Executive’s vested but unexercised Options as lifetime, the Executive shall be entitled to the normal associate discount in effect from time to time applicable to active associates of the Date Company or its successors, provided that the benefit of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date such discount shall not exceed $100,000 in any calendar year and no portion of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) unused discount for any calendar year may be carried over to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefitsany succeeding calendar year.
Appears in 1 contract
Samples: Employment Agreement (Saks Inc)
Prior to a Change in Control. Termination the Trustee may resign at any time by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect delivering written notice thereof to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue no such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through resignation shall take effect until the earlier of (Ai) sixty (60) days from the date of delivery of such notice to the Company or (ii) the original expiration appointment of a successor trustee. Following a Change in Control, the Trustee may resign only under one of the following circumstances:
(a) The Trustee is no longer in the business, or is actively in the process of removing itself from the business, of acting as trustee for employee benefit plans.
(b) The Trustee determines that a conflict of interest exists which would prohibit it from fulfilling its duties under this Agreement in an ethically proper manner, and a law firm (appointed by the President of the Association of the Bar of the City of New York, or by the American Arbitration Association, if the President of the Association of the Bar of the City of New York fails to so appoint within thirty days of a request for such appointment, or notifies the Trustee that it is unable to make such appointment) concurs with the Trustee. The Trustee shall use its best efforts to avoid the creation of such a conflict. The decision of such law firm shall be binding, but may be appealed in the same manner, and under the same conditions, as if it were made by an arbitrator. All costs incurred by the Trustee in connection with obtaining or appealing such a decision shall be reimbursable expenses pursuant to Article VI hereof.
(c) The assets of the Fund have been exhausted or are insufficient to pay accrued and reasonably anticipated fees and expenses of the Trustee hereunder, the Company has refused voluntarily to pay the Trustee's accrued fees and expenses as required pursuant to Section 6.2 and the Trustee has been unsuccessful in obtaining a court order requiring the Company to make such payments or has been unable to collect on a judgment for such fees and expenses. Notwithstanding the above, the Trustee may resign for reasons set forth in (a) or (b) only if it has obtained the agreement of a bank with assets in excess of $2 billion and net worth in excess of $100 million to replace it as trustee under the terms of this Agreement. The decisions rendered under (b), if that is the reason for the Trustee's resignation, may expressly excuse the Trustee from this requirement. In any event, the Trustee shall continue to be custodian of the Trust assets until the new trustee is in place, and the Trustee shall be entitled to expenses and fees through the later of the effective date of the Option, or (B) the 90th day following its resignation as Trustee and the end of its custodianship of the Normal Severance Period; and
(viii) to assets of the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other BenefitsFund.
Appears in 1 contract
Samples: Retirement Income Liability Agreement (Uslife Corp)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiviii) below, only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within 30 days of the Date of Termination):
(i) the Company will shall pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); , and
(ii) for on the longer six (6) month anniversary of six months or until the Date of Termination (the “Pay Date”), the Company shall pay the Executive becomes employed with a subsequent employer, but in no event lump sum equal to exceed the lesser amount of (A) 18 months the Executive’s Base Salary from the Date of Termination or until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (Bas defined in Section 13 of this Agreement) and failed to remedy such violation to the remaining term satisfaction of Executive’s Employment Period the Board within 10 days of notice of such violation;
(the “Normal Severance Period”)iii) thereafter, for up to twelve (12) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments shall cease if Executive becomes employed with a subsequent employer or earns an income which will cease be reportable as non-employee compensation on a 1099 form provided that such non-employee compensation is reasonably anticipated to be more than $50,000 per year or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days for a period of eighteen (18) months after the Date of Termination, Executive will be paid shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the eighteen (18) month period, provided, however, that the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and
(v) on the six (6) month anniversary of the Date of Termination, the Company shall pay Executive a lump sum bonus for the year in which the Date of Termination occurs in a lump sum cash an amount equal to 10050% of his then current potential Bonus Opportunity at target levels, and
(prorated through the Date of Terminationvi) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form all grants of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vivii) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-24- month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiviii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi8(a)(vii) above) will shall remain exercisable through the earlier earliest of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of Termination, or (C) the date that is the l0th anniversary of the Normal Severance Periodoriginal date of grant of the Option; and
(viiiix) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his 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 (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”) to the extent permitted under the applicable plan or policies.
Appears in 1 contract
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executive’s employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for the greater of (i) twelve (12) months or (ii) the remainder of the Employment Term (such period being referred to hereinafter as the “Severance Period”). The payments shall occur in installments in the same amount in effect immediately prior to such termination and during at the same regular payment intervals as the Executive’s Employment Base Salary was being paid on the effective date of this Agreement1 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. §1.409A-2(b)(2)(iii). Notwithstanding the foregoing, installments which in the aggregate do not exceed Executive’s Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executive’s termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executive’s termination of employment. In addition, the Executive shall be entitled to continue to participate for a period of twelve (12) months following such termination in all employee welfare benefit plans that the Company provides and continues to provide generally to its executive employees (or, if the Executive is not entitled to participate in any such plan under the terms thereof, in a comparable substitute arrangement provided by the Company) provided, however, that for the first 6 months following the Executive’s termination of employment, the Executive shall pay the premiums of any welfare benefit plans to the extent that the payment of such premiums by the Company would have constituted gross income to the Executive. The Company shall reimburse the Executive for any premiums or other expenses incurred by the Executive with respect to his participation and that of any of his dependents in any such employee benefit welfare plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executive’s death during the Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executive’s estate. If, during the Severance Period, the Executive breaches his obligations under Section 7 of this Agreement, the Company terminates may, upon written notice to the Executive, terminate the Severance Period and cease to make any further payments or provide any benefits described in this Section 5.2.1. The Company’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason obligation to make the Base Salary continuation payments and provide the welfare benefits described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (“Release”) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to payments or provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described benefits specified in this Section 8(b)(iv) will 5.2.1. ____________________ 1The schedule of severance payments must be reduced by the amount (if any) of the Bonus Opportunity fixed in this agreement. A schedule that Executive had previously elected is tied to receive Hardinge’s future salary payment schedule is not considered to be fixed in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option this agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Samples: Employment Agreement (Hardinge Inc)
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); andTermination;
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser shortest of (Aa) 18 12 months from after the Date of Termination or Termination; (Bb) the remaining term of Executive’s Employment Period Period; or (c) until Executive becomes employed with a subsequent employer (the “Normal Poor Performance Severance Period”), the Company will continue to pay Executive an amount equal to his her monthly Base Salary, payable in equal monthly bi-weekly installments or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and;
(iii) during the Normal Poor Performance Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal her Poor Performance Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and;
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) Stock held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 2412-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and;
(viiv) all of Executive’s Options that would have become vested (by lapse of time) within the 12-month period following the Date of Termination had Executive remained employed during such period will become immediately vested and exercisable as of the Date of Termination;
(vi) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to the Section 8(b)(vi8(c)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th 90’h day following the end of the Normal later of (1) six months from the Date of Termination, or (2) the end of the Poor Performance Severance Period; and;
(viiivii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his her Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to the occurrence of a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiv) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive the Accrued Obligations in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)Termination; and
(ii) for on the longer six month anniversary of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance PeriodPay Date”), the Company will continue to shall pay the Executive an amount a lump sum equal to his monthly six (6) months of the Executive’s Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, provided however, that the Company’s Company shall have no obligation to make or continue such payments will cease payment if Executive violates has violated any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails failed to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and;
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount a period of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants eighteen (as defined in Section 13(b18) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days months after the Date of Termination, Executive will be paid a bonus shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the year in which first six (6) such months, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive will pay the entire cost of such coverage for the first six (6) months after the Date of Termination occurs in a lump sum cash amount equal to 100% and the Company will reimburse Executive for the Company’s share of his Bonus Opportunity (prorated through such costs on the Date six-month anniversary of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described “separation from service” as defined in this Section 8(b)(iv) will be reduced by the amount (if any) 409A of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the CompanyCode; and
(viv) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of the Normal Severance PeriodTermination; and
(viiiv) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his Other Benefits.
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination In the event that Employee’s employment with the Company is involuntarily terminated by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment any reason other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates in the event Employee resigns his employment for Good Reason within a period pursuant to Section 10 and the Company’s right to cure (as set forth in Section 10) has expired (an “Involuntary Termination”), and in either such case Employee’s employment termination becomes effective before any Change in Control (as defined in Section 9(d) below) has occurred following the date of 90 days after the occurrence of the event giving rise to Good Reasonthis Agreement, then (and with respect Employee shall be entitled to the payments and benefits described in clauses (ii) through (vii) below, only if Executive provided that Employee executes a and does not revoke the Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement13) and fails the Release first becomes effective:
(i) Employee shall receive a cash payment equal to remedy one (1) times Employee’s Annual Base Salary, such violation amount to be paid in regular installments in accordance with the satisfaction Company’s normal payroll practices over a period of twelve (12) months, commencing on or as soon as practicable after the date the Release becomes effective and within thirty-five (35) days following Employee’s Termination Date.
(ii) Employee shall receive a cash payment equal to one (1) times the amount of the Board Employee’s target annual bonus for the performance year in which the Employee’s Termination Date occurs. Payment shall be made in a lump sum payment on or as soon as practicable after the date the Release becomes effective and within 10 thirty-five (35) days of notice of such violation; andfollowing Employee’s Termination Date.
(iii) during The Company shall, for a period of eighteen (18) months following the Normal Severance PeriodEmployee’s Termination Date, if and pay the Employee each month an amount equal to the extent Executive monthly COBRA medical insurance cost under the Company’s group medical plan for Employee and, where applicable, Employee’s spouse and eligible dependents; provided that Employee, and, where applicable, Employee’s spouse and dependents, are eligible for and timely elects elect to receive COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA healthcare continuation coverage and will impute taxable income to provided further that the Executive equal to the full premium amount; provided, however that payments specified under this Section 9(a)(iii) shall cease if the Company’s statutory obligation to provide such benefits will cease if Executive violates COBRA healthcare continuation coverage terminates for any reason before the expiration of the Restrictive Covenants eighteen (as defined in 18)‑month period. All Company payments under this Section 13(b9(a)(iii) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive Employee can be used for any purpose and will be responsible for paying reported as taxable payments.
(iv) The portion of any outstanding Equity Awards that were subject to vesting solely upon continuous service with the full cost Company and would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination Date shall automatically become fully vested and exercisable, as applicable, as of the COBRA continuation coverage Employee’s Termination Date. Such Equity Awards shall continue to be governed by and exercised, settled or paid in accordance with the procedures terms of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; andaward agreement.
(ivv) not later than 30 days after the Date With respect to any outstanding Equity Award that was subject to vesting in whole or in part based on achievement of Terminationperformance objective(s), Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however extent that the bonus applicable performance period has expired on or before Employee’s Termination Date, the performance objective(s) has/have been satisfied and the only condition to vesting that remains is continuous service until one or more future dates, the portion of such Equity Award that would have vested had Employee remained employed by the Company during the twelve (12) month period following Employee’s Termination Date shall become fully vested and exercisable as of Employee’s Termination Date. Such Equity Award shall continue to be governed by and exercised, settled or paid in accordance with the terms of the applicable award agreement.
(vi) Employee shall receive any amounts earned, accrued and owing but not yet paid to Employee as of Employee’s Termination Date and any benefits accrued and earned in accordance with the terms of any applicable benefit plans and programs of the Company. The payment of amounts described in this Section 8(b)(iv9(a)(vi) will be reduced by are not conditioned upon the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of Release becoming effective unless the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, benefit plan or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefitsprogram provides otherwise.
Appears in 1 contract
Samples: Executive Employment Agreement (Cognizant Technology Solutions Corp)
Prior to a Change in Control. Termination If the Executive’s employment is terminated prior to a “Change in Control” (as such term is defined in Section 4(c) hereof), either by the Company without Cause or by the Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment Period, the Company terminates Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to shall make the payments and provide the benefits described in clauses (ii) through (vii) below, only if to the Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):as follows:
(i) the The Company will shall pay to the Executive in a lump sum in cash within 30 10 days after following the Date of Employment Termination the sum of Date:
(A) the Executive’s Base Salary current base salary through the Employment Termination Date of Termination to the extent not theretofore paid, and ;
(B) any accrued vacation pay due the Executive as of the Employment Termination Date to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”)paid; and
(C) any expense reimbursement due the Executive as of the Employment Termination Date to the extent not theretofore paid.
(ii) for Provided that the longer of six months or until Executive becomes employed with a subsequent employerhas executed and delivered to the Company, but and has not revoked, the general release in no event to exceed substantially the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period form attached hereto as Attachment A (the “Normal Severance PeriodRelease”), the Company will continue to pay shall make the following payments and shall provide the following benefits, provided that if the Executive directly or indirectly engages in conduct that constitutes an amount equal to his monthly Base SalaryAssociation (as defined in Section 12(b)(iv)(D) hereof), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such the following payments will cease if Executive violates any and to provide the following benefits shall immediately terminate:
(A) an amount equal to the sum of two times the Restrictive Covenants (as defined Executive’s Base Salary and one times the Executive’s target bonus potential amount described in Section 13(b3(b) for the fiscal year during which the termination of this Agreement) and fails to remedy such violation employment occurs, which amount shall, except as otherwise provided in Section 10 hereof, be paid to the satisfaction of Executive by the Board within 10 days of notice of such violation; andCompany in 24 equal monthly installments commencing with the month following the month in which the Employment Termination Date occurs;
(iiiB) during the Normal Severance Periodamount of any annual cash bonus earned by the Executive and payable, if and but not yet paid, for the fiscal year prior to the extent Executive timely elects COBRA continuation coveragefiscal year in which the Employment Termination Date occurs, with the Company will pay for the full premium entire amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage bonus being determined in accordance with the procedures applicable formula or the achievement of the Company generally corporate objectives applicable to all qualified beneficiaries receiving COBRA continuation coverage; andthe Executive and his direct reports, which bonus shall be paid to the Executive by the Company at the time that bonuses for such fiscal year are paid to the other senior executives of the Company;
(ivC) not later than 30 days after if the Employment Termination Date occurs during the second six months of Terminationthe Company’s fiscal year, the amount of any annual cash bonus earned by the Executive will be paid a bonus for the fiscal year in which the Employment Termination Date occurs, determined following the end of such fiscal year, with the entire amount of such bonus being determined in accordance with the applicable formula or the achievement of the corporate objectives applicable to the Executive and his direct reports, which bonus amount shall be (1) multiplied by a fraction the numerator of which is the number of days that have elapsed during the fiscal year in which the Employment Termination Date occurs in a lump sum cash amount equal to 100% and including the Employment Termination Date and the denominator of his Bonus Opportunity which is 365, and (prorated through 2) paid to the Date of Termination) adjusted up or down Executive by reference to his year-to-date performance the Company at the Date of Termination in relation time that bonuses for such fiscal year are paid to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock other senior executives of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of but if the Employment Termination Date of Termination will become immediately vested as of occurs during the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock first six months of the Company’s fiscal year, no bonus amount shall be payable for such fiscal year;
(D) the Executive’s unexercisable stock appreciation rights in Common Stock options, unvested shares of restricted stock and unvested performance shares shall vest as follows:
(1) performance shares that have been fully earned but are subject to restrictions on vesting based on time shall vest immediately;
(2) performance shares that have not been earned and are subject to restrictions on vesting based on the achievement of performance goals shall vest based on the achievement of such performance goals, such achievement to be determined following the end of the performance period, with the number of such performance shares determined to have vested being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such performance shares and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such performance shares and the date of the end of the performance period, which performance shares shall be paid to the Executive by the Company at the time that performance shares for such performance period are paid to the other senior executives of the Company;
(3) unvested shares of restricted stock and similar Company stock-based awards unexercisable stock options that are subject to cliff vesting shall vest prorata, with the number of such unvested shares of restricted stock or shares subject to such unexercisable stock options being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Termination Date and denominator of which is the number of days between the date of grant of such award and the date on which shares of restricted stock or stock options are scheduled to xxxxx xxxx;
(“Options”4) unvested shares of restricted stock and unexercisable stock options that would have become vested vest in installments shall vest prorata, with the number of shares in each unvested installment being multiplied by a fraction, the numerator of which is the number of days between the date of grant of such award and the Employment Termination Date and the denominator of which is the number of days between the date of grant of such award and the date on which such installment is scheduled to vest;
(E) reimbursement of the Executive for the amount expended by lapse the Executive for the cost of time) within medical insurance coverage under COBRA for the 24Executive and the Executive’s dependents during the 18-month period following the Date of Employment Termination had Executive remained employed during such period will become immediately vested as of the Date of TerminationDate; and
(viiF) notwithstanding for the provisions remainder of the applicable Option agreement, all of Executive’s vested but unexercised Options as lifetime, provided that the Executive has been employed by the Company for at least one year, the Executive shall be entitled to the normal associate discount in effect from time to time applicable to active associates of the Date Company or its successors, provided that the benefit of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date such discount shall not exceed $25,000 in any calendar year and no portion of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) unused discount for any calendar year may be carried over to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefitsany succeeding calendar year.
Appears in 1 contract
Samples: Employment Agreement (Saks Inc)
Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viix) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive’s business expenses for which reimbursement has been requested pursuant to the extent Company’s expense reimbursement policy but which have not theretofore been reimbursed before Executive’s applicable Date of Termination and (C) Executive’s Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the Committee but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months if the Applicable Pay Date is the Delayed Pay Date, the Company will pay Executive on the Delayed Pay Date a lump sum equal to the amount of the Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) Executive would have earned if Executive had been continuously employed by Company from the Date of Termination until the Delayed Pay Date or (B) if the remaining term of Executive’s Employment Period (Applicable Pay Date is the “Normal Severance Period”)Immediate Pay Date, the Company will continue to pay Executive an amount equal to his monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, payable as in equal monthly or more frequent installments as are customary effect immediately prior to such reduction in Base Salary) until payments begin under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such § 8(a)(iii) without any duplication of payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of between this Agreement§ 8(a)(ii) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation§ 8(a)(iii); and
(iii) during commencing seven (7)-months after the Normal Severance Period, if and to the extent date Executive timely elects COBRA continuation coveragehas a Separation from Service, the Company will continue to pay for the full premium Executive an amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to Executive’s monthly Base Salary (as in effect on the full premium amount; providedDate of Termination or, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as defined in Section 13(b) of this Agreement) and fails effect immediately prior to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided furtherreduction in Base Salary), that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage payable in accordance with the procedures Company’s then standard payroll practices for a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coveragetwelve (12) consecutive months; and
(iv) as additional severance (and not later than 30 in lieu of any bonus for the fiscal year in which the Date of Termination occurs), the Company will pay Executive a lump sum equal to one and one-half (1½) times the amount of Executive’s Target Bonus Opportunity (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) as in effect immediately prior to such reduction in Executive’s Target Bonus Opportunity) on the date that is nine (9) months and one (1) day after the date of Executive’s Separation from Service; and
(v) the Company shall pay to Executive a lump sum cash amount within sixty (60) days after following the Date of Termination equal to the product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company’s group health plan for purposes of continuation coverage under § 4980B of the Code (“COBRA”) with respect to the maximum level of coverage in effect for Executive and his spouse and dependents as of immediately prior to the Date of Termination, ; and
(vi) the Company will pay Executive will be paid a pro-rated annual bonus for the fiscal-year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination in relation to and the prior denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance objectives under targets are in fact certified by the Committee to have been met, and such bonus shall be paid in a single lump sum cash payment no later than two and one-half (2½) months after the end of the fiscal year in which the bonus is earned; provided further that if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Target Bonus Opportunity, such prorated bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will shall be reduced by the amount (if any) of the calculated based on Executive’s Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the CompanyExecutive’s Target Bonus Opportunity; and
(vvii) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“Restricted Stock”) ), granted to and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(viviii) all of Executive’s options to acquire Company Common Stock of the Company, stock or appreciation rights in with respect to shares of Company Common Stock of the Company and similar Company stock-based awards (“Options”) granted to and held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the twenty-four (24-) month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(viii)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the Date of Termination, or (C) the date that is the tenth (10th) anniversary of the original date of grant of the Option; and
(x) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements (“Performance Restricted Stock”) granted to and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one-half (2½) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Normal Severance PeriodPerformance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (2½) months after the end of the Performance Cycle (or any later date required by § 409A of the Code);
1. provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(v)(1) and not this § 8(a)(x); and
(viiixi) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.”);
Appears in 1 contract
Prior to a Change in Control. Termination by Executive for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, prior to a Change in Control and during the Executive’s Employment PeriodControl, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, or Executive terminates shall terminate employment for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viiviii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto (the “Release”)):
(i) the Company will shall pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); , and
(ii) for on the longer six month anniversary of six months or until the Date of Termination (the “Pay Date”), the Company shall pay the Executive becomes employed with a subsequent employer, but in no event lump sum equal to exceed the lesser amount of (A) 18 months the Executive’s Base Salary from the Date of Termination or until the Pay Date, provided however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (Bas defined in Section 13 of this Agreement) and failed to remedy such violation to the remaining term satisfaction of Executive’s Employment Period the Chief Executive Officer within 10 days of notice of such violation; and
(the “Normal Severance Period”)iii) thereafter, for up to three (3) additional months, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments shall cease if Executive becomes employed with a subsequent employer or earns an income which will cease be reportable as non-employee compensation on a 1099 form provided such non-employee compensation is reasonably anticipated to be more than $25,000 a year or if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days for a period of eighteen (18) months after the Date of Termination, Executive will be paid a bonus shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay all premiums for such COBRA coverage for Executive and his covered dependents for the year in which first nine (9) such months, provided, however, that (A) the obligation of the Company to pay the cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the extent that such health care coverage is provided by the new employer, and (B) if and to the extent required to prevent a violation of Section 409A of the Code, Executive will pay the entire cost of such coverage for the first six (6) months after the Date of Termination occurs in a lump sum cash amount equal to 100% and the Company will reimburse Executive for the Company’s share of his Bonus Opportunity (prorated through such costs on the Date six-month anniversary of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described “separation from service” as defined in this Section 8(b)(iv) will be reduced by the amount (if any) 409A of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the CompanyCode; and
(v) all grants of restricted stock, restricted stock of the Company but not performance units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination whose restrictions would lapse within the 12-month period following the Date of Termination will become immediately vested as of the Date of TerminationTermination and, if the Date of Termination occurs during a Performance Cycle (as defined in any applicable performance unit award certificate and terms and conditions) the Company may, but shall not be required to, determine that some or all of the performance units shall be earned at the end of the Performance Cycle based on actual performance as of the end of the Performance Cycle; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-24- month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi8(a)(vi) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end Date of the Normal Severance PeriodTermination; and
(viii) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his 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 (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”).
Appears in 1 contract
Prior to a Change in Control. Termination If, prior to the expiration of the Employment Term, the Executives employment is terminated by the Company without Cause, or the Executive resigns from his employment hereunder for Good Reason; Termination by the Company Other Than for Poor Performance, Cause or Disability. If, in either case at any time prior to a Change in Control Control, the Company shall continue to pay the Executive the Base Salary (at the rate in effect immediately prior to such termination) for eighteen (18) months (such period being referred to hereinafter as the Severance Period). The payments shall occur in installments in the same amount in effect immediately prior to such termination and at the same regular payment intervals as the Executives Base Salary was being paid on January 1, 2011 and such installments shall be deemed a series of separate payments within the meaning of Treas. Reg. 1.409A-2(b)(2)(iii). Installments which in the aggregate do not exceed Executives Base Salary payable over 6 months shall be paid in a lump sum within 60 days following Executives termination of employment. The remaining installments, if any, shall be paid in regular payment intervals with the first such installment paid on the first payment date occurring on or after the day following the 6-month anniversary of the Executives termination of employment. In addition, the Executive shall be entitled to continue to participate for a period of eighteen (18) months following such termination in all employee welfare benefit plans that the Company provides and continues to provide generally to its executive employees (or, if the Executive is not entitled to participate in any such plan under the terms thereof, in a comparable substitute arrangement provided by the Company) provided, however, that for the first six months following the Executives termination of employment, the Executive shall pay the premiums of any welfare benefit plans to the extent that the payment of such premiums by the Company would have constituted gross income to the Executive. The Company shall reimburse the Executive for any premiums or other expenses incurred by the Executive with respect to his participation and that of any of his dependents in any such employee benefit welfare plan. The Executive shall have no further right to receive any other compensation or benefits after such termination or resignation of employment except as determined in accordance with the terms of the employee benefit plans or programs of the Company. In the event of the Executives death during the Executive’s Employment Severance Period, Base Salary continuation payments under this Section 5.2.1 shall continue to be made during the remainder of the Severance Period to the beneficiary designated in writing for this purpose by the Executive or, if no such beneficiary is specifically designated, to the Executives estate. If, during the Severance Period, the Executive breaches his obligations under Section 7 of this Agreement, the Company terminates may, upon written notice to the Executive’s employment other than for Poor Performance, Cause terminate the Severance Period and cease to make any further payments or Disability, or Executive terminates employment for Good Reason provide any benefits described in this Section 5.
2.1. The Companys obligation to make the Base Salary continuation and health insurance payments described in this Section 5.2.1 shall be subject to the following conditions: (i) within a period of 90 twenty-one (21) days after the occurrence effective date of termination or resignation, the event giving rise to Good Reason, then (Executive shall have executed and with respect delivered to the payments Company a Termination Agreement and benefits described Release (Release) in clauses (ii) through (vii) below, only if Executive executes a Release in substantially the form of Exhibit A hereto attached hereto, and (ii) the “Release”)):
Release shall not have been revoked by the Executive during the Executive during the revocation period specified therein. If the Executive fails to deliver a fully executed Release to the Company before expiration of such twenty-one (i21) day period, or such release is revoked as permitted therein, then the Company will pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in have no event to exceed the lesser of (A) 18 months from the Date of Termination or (B) the remaining term of Executive’s Employment Period (the “Normal Severance Period”), the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverage; and
(iv) not later than 30 days after the Date of Termination, Executive will be paid a bonus for the year in which the Date of Termination occurs in a lump sum cash amount equal to 100% of his Bonus Opportunity (prorated through the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation to the prior established performance objectives under Executive’s bonus plan for such year; provided, however that the bonus payment described payments specified in this Section 8(b)(iv) will be reduced by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Company; and
(v) all grants of restricted stock, restricted stock units and similar Company stock-based awards (“Restricted Stock”) held by Executive as of the Date of Termination will become immediately vested as of the Date of Termination; and
(vi) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(vii) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi) above) will remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end of the Normal Severance Period; and
(viii) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his Other Benefits5.2.
Appears in 1 contract
Samples: Employment Agreement
Prior to a Change in Control. Termination Notice of Resignation Given by Executive for Good Reason; During the Time Period between the Earliest Notice Date and the First Anniversary Date, or Termination by the Company Other Than for Poor Performance, Cause or DisabilityDisability on or before the First Anniversary Date. If, prior to a Change in Control and during or prior to a Termination by the Executive’s Employment PeriodCompany for Cause, the Company terminates shall terminate Executive’s employment other than for Poor Performance, Cause or Disability, Disability on or before the First Anniversary Date or Executive terminates employment shall deliver a Notice of Termination (for Good Reason within a period any reason or no reason) between the Earliest Termination Date and the First Anniversary Date (inclusive of 90 days after the occurrence of the event giving rise to Good Reasonsuch dates), then (and with respect to the payments and benefits described in clauses (ii) through (viix) below, only if Executive executes a has complied with the provisions of this Agreement, including but not limited to the provisions of Sections 10 and 13, and only if within 60 days after the Date of Termination Executive shall have executed the Release in substantially and the form of Exhibit A hereto (the “Release”)):applicable revocation period shall have expired:
(i) the Company will shall pay to Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) Executive’s Base Salary through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay to the extent not theretofore paid (the sum of the amounts described in clauses (A) and (B) will be hereinafter referred to as the “Accrued Obligations”); , and
(ii) for on the longer first day of six months or until the seventh month after the Date of Termination (the “Six-Month Pay Date”), the Company shall pay Executive becomes employed with a subsequent employer, but in no event lump sum equal to exceed the lesser amount of (A) 18 months Executive’s Base Salary from the Date of Termination until the Six-Month Pay Date: provided, however, that the Company shall have no obligation to make such payment if Executive has violated any of the Restrictive Covenants (as defined in Section 13 of this Agreement) and failed to remedy such violation to the satisfaction of the Committee within 10 days of notice of such violation or if Executive has violated the provisions Section 10 of this Agreement. If Executive has performed services of any kind for any Competing Person or for any Person who has a parent, affiliate, or subsidiary who is a Competing Person between the Date of Termination and the Six-Month Pay Date, then the amount otherwise due shall be multiplied by a fraction, the numerator of which is the number of days that elapsed from the Date of Termination until his first date of service for such Person (Bwhich cannot exceed 180) and the remaining term denominator of Executive’s Employment Period which is 180; and
(iii) thereafter, for up to twelve (12) additional months following the “Normal Severance Period”)Six-Month Pay Date, the Company will continue to pay Executive an amount equal to his monthly Base Salary, payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, however that the Company’s obligation to make or continue such payments will shall cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 13 of this Agreement) and fails to remedy such violation to the satisfaction of the Board Committee within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) 10 of this Agreement) and fails to remedy such violation to the satisfaction , or if Executive performs services of the Board within 10 days of notice of such violation; provided furtherany kind for any Competing Person or for any Person who has a parent, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Periodaffiliate, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageor subsidiary who is a Competing Person; and
(iv) not later than 30 days for a period of eighteen (18) months after the Date of Termination, Executive will be paid a bonus shall have the right to elect continuation of health care coverage under the Company’s group health plan in accordance with “COBRA,” and the Company shall pay (and report as taxable income to Executive) all premiums for such COBRA coverage for Executive and his covered dependents for the year in which eighteen (18) month period, provided, however, that the Date obligation of Termination occurs in a lump sum cash amount equal the Company to 100% of his Bonus Opportunity (prorated through pay the Date of Termination) adjusted up or down by reference to his year-to-date performance at the Date of Termination in relation cost for such COBRA coverage shall terminate upon Executive’s obtaining other employment to the prior established performance objectives under Executive’s bonus plan for extent that such year; provided, however that the bonus payment described in this Section 8(b)(iv) will be reduced health care coverage is provided by the amount (if any) of the Bonus Opportunity that Executive had previously elected to receive in the form of restricted stock of the Companynew employer; and
(v) unless already paid, the Company shall pay to Executive, on the later of the Six-Month Pay Date or the normal payment date for the 2010 bonus payments, the amount of his fiscal year 2010 bonus, to the extent earned based on actual performance through the end of the performance period as if Executive had remained employed during the entire performance period provided that such bonus shall be paid only if the pre-established performance targets are in fact certified by the Committee in the ordinary course to have been met on a basis consistent with the Chief Executive Officer and the other senior executives under the senior executive compensation plan (the “Plan”); and
(vi) the Company shall pay to Executive, on the later of the Six-Month Pay Date or the normal payment date for such bonus payments, a pro-rated bonus with respect to the 2011 performance period if commenced prior to the Date of Termination (such bonus shall be calculated based on actual performance through the end of the performance period and then multiplied by a fraction, the numerator of which is the number of full months in the fiscal year preceding the Date of Termination and the denominator of which is 12; provided that such bonus shall be paid only if the pre-established performance targets are in fact certified by the Committee in the ordinary course to have been met on a basis consistent with the Chief Executive Officer and the other senior executives under the Plan; and
(vii) all grants of restricted stock, restricted stock units and similar of the Company stock-based awards (“Restricted Stock”) held by Executive as of the Effective Date of Termination will become immediately vested as of the Date of Termination; and
(viviii) any other performance-based incentive awards held by Executive as of the Effective Date shall continue in effect until the normal payment date for such awards, at which time such awards will be paid out, on the later of (a) the normal payment date for such awards or (b) the Six Month Pay Date, based on actual performance through the end of the applicable performance period as if Executive had remained employed during the entire performance period; provided that such award shall be made only if the pre-established performance targets are in fact certified by the Committee in the ordinary course to have been met on a basis consistent with the Chief Executive Officer and the other senior executives under the Plan. If there are any other performance-based incentive awards granted to Executive after the Effective Date, such awards shall continue in effect until the normal payment date for such awards, at which time such awards will be paid out, on the later of (a) the normal payment date for such awards or (b) the Six Month Pay Date, on a pro-rated basis equal to (i) the award Executive would have earned, if any, based on actual financial performance through the end of the applicable performance period as if Executive had remained employed during the entire performance period, times (ii) a fraction, the numerator of which is the number of full months in the performance period preceding the Date of Termination and the denominator of which is the number of full months in the performance period; provided that such award shall be made only if the pre-established performance targets are in fact certified by the Committee in the ordinary course to have been met on a basis consistent with the Chief Executive Officer and the other senior executives under the Plan; and
(ix) all of Executive’s options to acquire Common Stock of the Company, stock appreciation rights in Common Stock of the Company and similar Company stock-based awards (“Options”) that were granted prior to the Effective Date and would have become vested (by lapse of time) within the 24-month period following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi8(a)(ix) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th day following the end 13-month anniversary date of the Normal Severance PeriodDate of Termination, or (C) the date that is the 10th anniversary of the original date of grant of the Option; and
(viiixi) to the extent not theretofore paid or provided, the Company will shall timely pay or provide to Executive his any other amounts or benefits required to be paid or provided or which Executive is eligible to receive otherwise than under this Agreement 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”).
Appears in 1 contract
Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viix) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive’s business expenses for which reimbursement has been requested pursuant to the extent Company’s expense reimbursement policy but which have not theretofore been reimbursed before Executive’s applicable Date of Termination and (C) Executive’s Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the Committee but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months if the Applicable Pay Date is the Delayed Pay Date, the Company will pay Executive on the Delayed Pay Date a lump sum equal to the amount of the Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) Executive would have earned if Executive had been continuously employed by Company from the Date of Termination until the Delayed Pay Date or (B) if the remaining term of Executive’s Employment Period (Applicable Pay Date is the “Normal Severance Period”)Immediate Pay Date, the Company will continue to pay Executive an amount equal to his monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) until payments begin under § 8(a)(iii) without any duplication of payments between this § 8(a)(ii) and § 8(a)(iii); and
(iii) commencing on the seven (7)-month anniversary of the date Executive has a Separation from Service, the Company will continue to pay Executive an amount equal to Executive’s monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures Company’s then standard payroll practices for a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coverageeighteen (18) consecutive months; and
(iv) as additional severance (and not later than 30 in lieu of any bonus for the fiscal year in which the Date of Termination occurs), the Company will pay Executive a lump sum equal to two (2) times the amount of Executive’s Target Bonus Opportunity (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(iii) as in effect immediately prior to such reduction in Executive’s Target Bonus Opportunity) on the date that is nine (9) months and one (1) day after the date of Executive’s Separation from Service; and
(v) the Company shall pay to Executive a lump sum cash amount within sixty (60) days after following the Date of Termination equal to the product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company’s group health plan for purposes of continuation coverage under Section 4980B of the Code (“COBRA”) with respect to the maximum level of coverage in effect for Executive and his spouse and dependents as of immediately prior to the Date of Termination, ; and
(vi) the Company will pay Executive will be paid a pro-rated annual bonus for the fiscal-year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination in relation to and the prior denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance objectives under targets are in fact certified by the Committee to have been met, and such bonus shall be paid in a single lump sum cash payment no later than two and one-half (2½) months after the end of the fiscal year in which the bonus is earned; provided further that if Executive terminates employment pursuant to § 7(c)(iii) upon a reduction in Executive’s Target Bonus Opportunity, such prorated bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will shall be reduced by the amount (if any) of the calculated based on Executive’s Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the CompanyExecutive’s Target Bonus Opportunity; and
(vvii) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“Restricted Stock”) ), granted to Executive following the Effective Date and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(viviii) all of Executive’s options to acquire Company Common Stock of the Company, stock or appreciation rights in with respect to shares of Company Common Stock of the Company and similar Company stock-based awards (“Options”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the 24twenty-month four (24)-month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to Executive following the Effective Date and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(viii)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the Date of Termination, or (C) the date that is the tenth (10th) anniversary of the original date of grant of the Option; and
(x) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements (“Performance Restricted Stock”) granted to Executive following the Effective Date and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one-half (2½) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Normal Severance PeriodPerformance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (2½) months after the end of the Performance Cycle (or any later date required by § 409A of the Code); provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(iv)(1) and not this § 8(a)(x); and
(viiixi) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.”);
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Prior to a Change in Control. Termination Resignation by Executive for Good Reason; Termination by the Company Other Than for Poor PerformanceCause, Cause Death or Disability. If, prior to a Change in Control and during or on or after the Executive’s Employment Periodsecond (2nd) anniversary of the date of a Change in Control, the Company terminates Executive’s employment other than for Poor PerformanceCause, Cause death or Disability, Disability or Executive terminates employment resigns for Good Reason within a period of 90 days after the occurrence of the event giving rise to Good Reason, then (and with respect to the payments and benefits described in clauses (ii) through (viix) belowof this § 8(a), only if Executive executes (and does not revoke) a Release in substantially the form of Exhibit A hereto (the “Release”)) within sixty (60) days of the Date of Termination):
(i) the Company will pay to Executive in a lump sum in cash within 30 thirty (30) days after the Date of Termination the sum of (A) Executive’s Base Salary (as in effect on the Date of Termination) earned through the Date of Termination to the extent not theretofore paid, and (B) any accrued vacation pay Executive’s business expenses for which reimbursement has been requested pursuant to the extent Company’s expense reimbursement policy but which have not theretofore been reimbursed before Executive’s applicable Date of Termination and (C) Executive’s Annual Bonus, if any, earned for the fiscal year immediately preceding the fiscal year in which the Date of Termination occurs, if such bonus has been certified as payable by the Committee but has not been paid before the Date of Termination (the sum of the amounts described in clauses (A), (B) and (BC) will shall be hereinafter referred to as the “Accrued Obligations”); and
(ii) for the longer of six months or until Executive becomes employed with a subsequent employer, but in no event to exceed the lesser of (A) 18 months if the Applicable Pay Date is the Delayed Pay Date, the Company will pay Executive on the Delayed Pay Date a lump sum equal to the amount of the Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) Executive would have earned if Executive had been continuously employed by Company from the Date of Termination until the Delayed Pay Date or (B) if the remaining term of Executive’s Employment Period (Applicable Pay Date is the “Normal Severance Period”)Immediate Pay Date, the Company will continue to pay Executive an amount equal to his her monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary) until payments begin under § 8(a)(iii) without any duplication of payments between this § 8(a)(ii) and § 8(a)(iii); and
(iii) commencing on the seven (7)-month anniversary of the date Executive has a Separation from Service, the Company will continue to pay Executive an amount equal to Executive’s monthly Base Salary (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Base Salary, as in effect immediately prior to such reduction in Base Salary), payable in equal monthly or more frequent installments as are customary under the Company’s payroll practices from time to time; provided, however, that the Company’s obligation to make or continue such payments will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; and
(iii) during the Normal Severance Period, if and to the extent Executive timely elects COBRA continuation coverage, the Company will pay for the full premium amount of such COBRA continuation coverage and will impute taxable income to the Executive equal to the full premium amount; provided, however that the Company’s obligation to provide such benefits will cease if Executive violates any of the Restrictive Covenants (as defined in Section 13(b) of this Agreement) and fails to remedy such violation to the satisfaction of the Board within 10 days of notice of such violation; provided further, that to the extent Executive continues COBRA continuation coverage beyond his Normal Severance Period, Executive will be responsible for paying the full cost of the COBRA continuation coverage in accordance with the procedures Company’s then standard payroll practices for a period of the Company generally applicable to all qualified beneficiaries receiving COBRA continuation coveragetwelve (12) consecutive months; and
(iv) as additional severance (and not later than 30 in lieu of any bonus for the fiscal year in which the Date of Termination occurs), the Company will pay Executive a lump sum equal to one and one-half (1½) times the amount of Executive’s Target Bonus Opportunity (as in effect on the Date of Termination or, if Executive terminates employment pursuant to § 7(c)(ii) as in effect immediately prior to such reduction in Executive’s Target Bonus Opportunity) on the date that is nine (9) months and one (1) day after the date of Executive’s Separation from Service; and
(v) the Company shall pay to Executive a lump sum cash amount within sixty (60) days after following the Date of Termination equal to the product of (A) eighteen (18) multiplied by (B) one hundred percent (100%) of the monthly premiums for continuation of health care coverage under the Company’s group health plan for purposes of continuation coverage under § 4980B of the Code (“COBRA”) with respect to the maximum level of coverage in effect for Executive and her spouse and dependents as of immediately prior to the Date of Termination, ; and
(vi) the Company will pay Executive will be paid a pro-rated annual bonus for the fiscal-year in which the Date of Termination occurs in a lump sum cash amount equal to 100% (i) the amount Executive would have earned, if any, under § 5(b)(i) for the year of his Bonus Opportunity termination based on actual financial performance for such fiscal year, times (prorated through ii) a fraction, the Date numerator of Termination) adjusted up or down by reference to his year-to-date performance at which is the number of full months in the fiscal year preceding the Date of Termination in relation to and the prior denominator of which is twelve (12); provided that such bonus shall be paid only if the pre-established performance objectives under targets are in fact certified by the Committee to have been met, and such bonus shall be paid in a single lump sum cash payment no later than two and one-half (2½) months after the end of the fiscal year in which the bonus is earned; provided further that if Executive terminates employment pursuant to § 7(c)(ii) upon a reduction in Executive’s Target Bonus Opportunity, such prorated bonus plan for such year; provided, however that the bonus payment described in this Section 8(b)(iv) will shall be reduced by the amount (if any) of the calculated based on Executive’s Target Bonus Opportunity that Executive had previously elected as in effect immediately prior to receive such reduction in the form of restricted stock of the CompanyExecutive’s Target Bonus Opportunity; and
(vvii) all grants restricted Company Common Stock or units which represent shares of restricted stockCompany Common Stock, restricted stock units and similar Company stock-based awards excluding those that are subject to performance conditions (“Restricted Stock”) ), granted to and held by Executive as of the Date of Termination will become immediately vested as of the Date of TerminationTermination and, in the case of units, shall be settled within sixty (60) days following the Date of Termination (or any later date required by § 409A of the Code); and
(viviii) all of Executive’s options to acquire Company Common Stock of the Company, stock or appreciation rights in with respect to shares of Company Common Stock of the Company and similar Company stock-based awards (“Options”) granted to and held by Executive as of the Date of Termination that would have become vested (by lapse of time) within the twenty-four (24-) month period immediately following the Date of Termination had Executive remained employed during such period will become immediately vested as of the Date of Termination; and
(viiix) notwithstanding the provisions of the applicable Option agreement, all of Executive’s vested but unexercised Options granted to and held by Executive as of the Date of Termination (including those with accelerated vesting pursuant to Section 8(b)(vi§ 8(a)(viii)) above) will shall remain exercisable through the earlier of (A) the original expiration date of the Option, or (B) the 90th ninetieth (90th) day following the Date of Termination, or (C) the date that is the tenth (10th) anniversary of the original date of grant of the Option; and
(x) any restricted Company Common Stock or units which represent shares of Company Common Stock contingent on the satisfaction of the related performance requirements (“Performance Restricted Stock”) granted to and held by Executive as of the Date of Termination shall be treated as follows:
(1) If the Date of Termination occurs during the first year of a Performance Cycle (as defined in the applicable award agreement), a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination, shall vest assuming target levels of performance, and such award shall be settled no later than two and one-half (2½) months after the Date of Termination (or any later date required by § 409A of the Code); and
(2) If the Date of Termination occurs after the first year of a Performance Cycle, a portion of the total shares of Company Common Stock subject to such award, pro-rated based on the number of days elapsed in the Performance Cycle as of the Date of Termination (it being understood that proration shall not apply if the Date of Termination occurs after the end of the Normal Severance PeriodPerformance Cycle but prior to the settlement date of the award), shall vest based on actual performance at the end of the full Performance Cycle, and such award shall be settled no later than two and one-half (2½) months after the end of the Performance Cycle (or any later date required by § 409A of the Code); provided, however, if Executive is Retirement-eligible on the Date of Termination, such Performance Restricted Stock shall be treated in accordance with § 8(d)(v)(1) and not this § 8(a)(x); and
(viiixi) to the extent not theretofore paid or provided, the Company will timely pay or provide to Executive his pursuant to the timing rules of the controlling terms of any plan, program, policy, practice, contract or agreement of the Company any other amounts or benefits, including but not limited to, previously earned but unpaid annual incentive awards, previously earned but unpaid long-term incentive awards, and properly documented and approved but unpaid business expenses, required to be paid or provided or which Executive is eligible to receive under any such 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.”);
Appears in 1 contract
