Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with: (i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i); (ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year; (iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year; (iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B); (v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and (vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 10 contracts
Samples: Executive Employment Agreement (Belden Inc.), Executive Employment Agreement (Belden Inc.), Executive Employment Agreement (Belden Inc.)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);to the extent no theretofore paid or deferred, and (B) any accrued vacation pay, to the extent not theretofore paid; plus
(ii) Any unpaid on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Internal Revenue Code (“Code”)), a lump sum cash amount equal to a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination Executive’s Date of Termination occurs, the amount of which portion shall at least be based on target performance and equal to (A) Executive’s Bonus Amount, multiplied by (B) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (C) any amounts paid from the Company’s annual incentive plan for the fiscal year in which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;Executive’s Date of Termination occurs; plus
(iviii) A lump on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Code, a lump-sum severance payment in the aggregate cash amount equal to the product of (A) the sum of two (12) times Executive’s highest Base Salary annual rate of base salary during the Protection Period 12-month period immediately prior to Executive’s Date of Termination, plus (2) his annual target annual cash incentive award multiplied by (B) two (2) times Executive’s Bonus Amount.
(iv) in addition to the payments set forth in Sections 4 (a)(i); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v(ii) and Treasury Regulation (iii) as well as Section 1.409A-3(i)(55, any stock incentives (as defined in the stock incentive plans maintained by the Company) (or any successor provision) thereunder (that have been awarded to Executive under the terms of the stock incentive plans maintained by the Company shall fully vest upon the occurrence of a “409A Change in Control”), the amount payable to Executive under this subparagraph as such term is defined in Section 1(d) with 50% substituted for 25% in Section 1(d)(ii) (ivwhether or not a Qualifying Termination has occurred) and all other terms and conditions of any such stock incentive award shall be paid to Executive remain in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, effect to the extent necessary to avoid not inconsistent with the application provisions of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv4(a)(iv).
Appears in 6 contracts
Samples: Change in Control Severance Agreement (Gevity Hr Inc), Change in Control Severance Agreement (Gevity Hr Inc), Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);
to the extent not theretofore paid or deferred, (iiB) Any unpaid a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive’s Date of Termination occurs in an amount at least equal to (1) Executive’s Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company’s annual incentive plan for the fiscal year in which proExecutive’s Date of Termination occurs and (C) any accrued vacation pay, in each case to the extent not theretofore paid; plus
(ii) within five (5) days following the Date of Termination, a lump-rated sum cash amount equal to (i) one (1) times Executive’s highest annual cash rate of base salary during the 12-month period immediately prior to Executive’s Date of Termination, plus (ii) one (1) times Executive’s Bonus Amount.
(iii) in addition to the payments set forth in Sections 4 (a) (i) and (ii) as well as Section 5, any stock incentives (as defined in the stock incentive plans maintained by the Company) that have been awarded to Executive under the terms of the stock incentive plans maintained by the Company shall fully vest upon the occurrence of a Change in Control, as such term is defined in Section 1(d) with 50% substituted for 25 % in Section 1 (d) (ii) (whether or not a Qualifying Termination has occurred) and all other terms and conditions of any such stock incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment remain in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, effect to the extent necessary to avoid not inconsistent with the application provisions of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b4 (a) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv(iii).
Appears in 5 contracts
Samples: Change in Control Severance Agreement (Gevity Hr Inc), Change in Control Severance Agreement (Gevity Hr Inc), Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of the date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv 10(b)(iv) shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of from employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 5 contracts
Samples: Executive Employment Agreement (Belden Inc.), Executive Employment Agreement (Belden Inc.), Executive Employment Agreement (Belden Inc.)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to 8(c)iv shall be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination receipt of employment. Provided, to the extent applicable under Section 409A as calculation from a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)specified advisor.
Appears in 4 contracts
Samples: Executive Employment Agreement (Belden Inc.), Executive Employment Agreement (Belden Inc.), Executive Employment Agreement (Belden Inc.)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withthe following compensation and benefits to Executive:
(i) Within ten (10) days following the Date of Termination, the Company shall pay a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);
to the extent not theretofore paid or deferred, (iiB) Any unpaid a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive’s Date of Termination occurs in an amount at least equal to (1) Executive’s Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company’s annual incentive plan for the fiscal year in which proExecutive’s Date of Termination occurs and (C) any compensation previously deferred by Executive other than pursuant to a tax-rated annual cash incentive award shall be paid when awards are paid generally qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to senior executives for such yearthe extent not theretofore paid;
(ivii) A lump Within ten (10) days following the Date of Termination, the Company shall pay a lump-sum severance payment in the aggregate cash amount equal to the product of (A) the sum of two (12) times Executive’s highest Base Salary annual rate of base salary during the Protection Period 12-month period immediately prior to Executive’s Date of Termination, plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless ) times Executive’s Bonus Amount (provided that the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the total amount payable to Executive under this subparagraph (ivSection 4(a)(ii) shall not be paid to Executive in equal semi-monthly payroll installments over less than $1,500,000);
(iii) For a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to months following Executive’s continued co-payment Date of premiumsTermination, continued participation for two the Company shall provide Executive (2and Executive’s dependents, if applicable) years in with the Company’s medical same level of medical, dental, accident, disability and life insurance benefits plan which covers Executive and his eligible dependents upon substantially the same terms and conditions (except including contributions required by Executive for such benefits) as existed immediately prior to Executive’s Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the requirements Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s continued employmenteligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder;
(iv) Any Company share options or share (or other equity-based) awards previously granted to Executive, whether vested or not, as of the Date of Termination shall be fully vested as of the Date of Termination, and, notwithstanding any provision to the contrary in effect Executive’s share option award agreement, all unexercised Company share options as of the Date of Termination shall be exercisable until the one (1) year anniversary of the Date of Termination and one half of any unexercised Company share options as of the Date of Termination (without regard to any share options exercised prior to the one (1) year anniversary of the Date of Termination) shall be exercisable between the one
(1) year and two (2) year anniversary of the Date of Termination, and the “Right of Recapture” provision in Executive’s share option award agreement shall no longer be applicable;
(v) To the maximum extent permitted under applicable law, all contributions made by the Company, for active employees the account of Executive, to any and all tax qualified pension plans of the Company (including but not limited to the Section 401(k) plan of the Company) shall immediately vest in full on the Date of Termination. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefitsIf such accelerated vesting is not permitted under applicable law, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after following the Date of Termination, pay to the Executive an additional lump-sum cash amount equal to the sum of the then unvested portions of all such Company contributions; plus
(vi) Outplacement services with a cost of up to $20,000 for a period of up to twelve (12) months shall be made available at the expense of the Company through and at the facilities of a reputable and experienced outplacement services provider selected by the Company with the approval of the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and which approval shall not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)withheld unreasonably.
Appears in 4 contracts
Samples: Change in Control Severance Agreement (Archipelago Holdings L L C), Change in Control Severance Agreement (Archipelago Holdings L L C), Change in Control Severance Agreement (Archipelago Holdings L L C)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by Notwithstanding the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive withforegoing:
(i) ExecutiveIn the event of the Participant’s Accrued ObligationsQualifying Termination prior to the completion of any Performance Period applicable to the Award (and any associated Dividend Equivalent Amount), payable a portion of the RSUs which may be earned under the Award will become earned, with the actual number of earned RSUs determined as follows:
(A) with respect to the one year measurement component of the Award, based on actual performance through the most recently completed fiscal quarter measured against the Performance Components as pro-rated based on the number of fiscal quarters completed prior to the Termination Date relative to the total number of fiscal quarters in the Performance Period; and
(B) with respect to the three year measurement component, based on actual performance through the Termination Date measured against the Performance Components based on actual performance through the Termination Date (or if not readily available, measured as of the end of the month immediately preceding the Termination Date) ; provided, that any performance criteria based on the achievement of company-wide strategic objectives or satisfaction of individual performance criteria shall be deemed achieved or satisfied at target level (as applicable); and
(ii) The number of earned RSUs calculated in accordance with Section 8(a)(i3(b)(i) which become vested (and any associated Dividend Equivalent Amount) will be pro-rated based on the number of days in the applicable Performance Period completed prior to the Termination Date, and such pro-rated number of earned RSUs under the Award shall be deemed vested in full and settled pursuant to Section 2(d);, with the “Vesting Date” meaning the Termination Date.
(iiiii) Any unpaid annual cash incentive award In the event of the Participant’s Qualifying Termination after the completion of the Performance Period applicable to an Award, but prior to the last Vesting Date applicable to the earned RSUs granted under such Award, all such earned RSUs shall become vested as of the Termination Date. In such case, the number of earned RSUs (and any associated Dividend Equivalent Amount) under the Award shall be deemed vested in full and settled pursuant to Section 2(d), with the “Vesting Date” meaning the Termination Date.
(iv) The levels of achievement with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which Performance Components shall be based on target performance adjusted from time to time by the Committee as it deems equitable and a fractionnecessary in light of acquisitions, the numerator of which is the number of days elapsed during the performance year through the date of termination dispositions and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on other transactions or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (extraordinary or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in one- time events that impact the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)operations.
Appears in 4 contracts
Samples: Employment Agreement (Brixmor Operating Partnership LP), Employment Agreement (Brixmor Operating Partnership LP), Employment Agreement (Brixmor Operating Partnership LP)
Qualifying Termination. IfUpon a Qualifying Termination that does not occur during a CIC Protection Period, prior subject to Executive’s attainment execution and non-revocation of age 65a release of claims, Executive’s employment is involuntarily terminated in the form provided by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection PeriodRelease”), then within the Company time period specified therein and Executive’s continued compliance with the provisions of the Confidentiality Agreement and Sections 4, 5, 6 and 8(k) Executive shall pay or provide Executive withbe entitled to receive:
(i) aggregate severance payments in an amount equal to the Executive’s Accrued Obligationsannual base salary at the rate in effect on the Termination Date (and prior to any reduction that constitutes Good Reason), payable in equal installments in accordance with Section 8(a)(i)the Company’s normal payroll practices for the 12 months following the date the Release becomes effective and irrevocable; provided, that if the period during which the Release could become effective and irrevocable spans two calendar years, payments of such installments shall not commence until the first normal payroll date in the second calendar year;
(ii) Any unpaid annual cash incentive award earned with respect subject to Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and subject to Executive’s copayment of premium amounts at the active employees’ rate, reimbursement for the amount of the remainder of the premiums for Executive’s and his or her covered dependents’ participation in the Company’s group health plans pursuant to COBRA for a period ending on the earliest of (A) the first anniversary of the Termination Date, (B) Executive becoming eligible for other employer-sponsored group health benefits or Medicare, and (C) the expiration of Executive’s rights under COBRA; provided, however, that in the event that the benefits provided herein would subject the Company or any of the Affiliates to any fiscal year ending on tax or preceding penalty under the date Patient Protection and Affordable Care Act (the “PPACA”) or Section 105(h) of terminationthe Internal Revenue Code of 1986 (the “Code”), payable when awards are paid generally Executive and the Company agree to senior executives for such year;work together in good faith to restructure the foregoing benefit; and
(iii) A pro-rated any earned but unpaid annual cash incentive bonus for the fiscal year preceding the fiscal year in which such termination the Termination Date occurs, the amount of which shall be based payable on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and when bonuses for such fiscal year are otherwise paid to the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior Company’s executives for such fiscal year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) . Following Executive’s highest Base Salary Qualifying Termination that does not occur during the a CIC Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2Period, except as set forth in this Section 3(b); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (Executive shall have no further rights to any compensation or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)Agreement.
Appears in 4 contracts
Samples: Severance Agreement (Zevia PBC), Severance Agreement (Zevia PBC), Severance Agreement (Zevia PBC)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Term of this Agreement the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within 30 days following the Date of Termination a lump-sum cash amount equal to the sum of (A) Executive’s Accrued ObligationsBase Salary through the Date of Termination and any bonus amounts which have become payable to the extent not theretofore paid or deferred, payable in accordance with Section 8(a)(i);
(iiB) Any unpaid a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive’s Date of Termination occurs in an amount at least equal to (1) Executive’s Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company’s annual incentive plan for the fiscal year in which pro-rated annual Executive’s Date of Termination occurs, (C) any accrued vacation pay, and (D) the cash incentive award shall be paid when awards are paid generally equivalent of any accumulated sick leave; in each case to senior executives for such yearthe extent not theretofore paid;
(ivii) A lump within 30 days following the Date of Termination, a lump-sum severance payment in the aggregate cash amount equal to 2.99 times the product lesser of (A) the sum of (1) Executive’s highest average annual Base Salary during for the Protection Period plus (2) his three-year period immediately prior to Executive’s Date of Termination and Executive’s average annual target annual cash incentive award multiplied by bonus earned for the three calendar years immediately preceding the calendar year in which Executive’s Date of Termination occurs, or (B) two the sum of Executive’s Adjusted Base Salary and target annual incentive bonus for the calendar year in which Executive’s Date of Termination occurs (2except that, if Executive’s target annual incentive bonus has not been established at the time of termination of his employment, Executive’s actual annual incentive bonus for the immediately preceding calendar year will be substituted for such target annual incentive bonus);
(iii) the Company shall continue to provide, for a period of three (3) years following Executive’s Date of Termination, Executive (and Executive’s dependents, if applicable) with the same level of medical, dental, accident, disability and life insurance benefits and following such three year period retiree medical and dental benefits for the life of Executive and eligible dependents upon substantially the same terms and conditions (including contributions required by Executive for such benefits) as existed on Executive’s Date of Termination; provided, unless that, if Executive cannot continue to participate in the Change of Control occurring on Company plans providing such benefits or preceding the Company shall modify or terminate any such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”)plans, the amount payable Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s eligibility, but only to the extent that the Company reimburses Executive under this subparagraph for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder;
(iv) Executive shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, entitled to the extent necessary provisions of the Executive Salary Continuation Plan and, notwithstanding anything to avoid the application contrary in such Plan, (i) shall be deemed to be sixty-five years of age as of the Date of Termination for purposes of determining the Retirement Benefit and commencement of payment thereof under Section 409A(a)(1)(A4.1 of the Plan (without regard to Executive’s actual age or date of commencement of retirement benefit payments under the Westar Energy, Inc. Retirement Plan) and Vesting under Section 4.3 of the Plan and (ii) Compensation for purposes of calculating the Retirement Benefit thereunder shall be deemed to be the lesser of (A) the sum of Executive’s average annual Base Salary for the three-year period immediately prior to Executive’s Date of Termination and Executive’s average annual incentive bonus earned for the three calendar years immediately preceding the calendar year in which Executive’s Date of Termination occurs, or (B) the sum of Executive’s Adjusted Base Salary and target annual incentive bonus for the calendar year in which Executive’s Date of Termination occurs (except that, if Executive’s target annual incentive bonus has not been established at the time of termination of his employment, Executive’s actual annual incentive bonus for the immediately preceding calendar year will be substituted for such target annual incentive bonus);
(v) Subject to Executive’s continued co-payment continuation of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) matching gift program as in effect for active employees on the date hereof or if more favorable to the Executive, as may be available to Executive or other comparable executives of the Company thereafter, as if Executive continued as a senior executive of the Company. In the event , for three (3) years following Executive’s Date of Termination;
(vi) each stock option (and related dividend equivalent) granted to Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection and outstanding immediately prior to the Qualifying Termination shall remain outstanding and shall continue to vest and become exercisable as if Executive had remained in employment following his Date of Termination;
(vii) each restricted share granted to Executive by the Company and still subject to restrictions immediately cease. The continuation prior to the Qualifying Termination shall remain outstanding and shall continue to vest as if Executive had remained in employment following his Date of health benefits under this subsection Termination;
(viii) each restricted share unit granted to Executive by the Company which has not vested prior to the Qualifying Termination shall reduce remain outstanding and shall continue to vest as if Executive had continued in employment following his Date of Termination, provided, however, that each restricted share unit granted to Executive in January 2002 shall vest on the period tenth anniversary of coverage and count against Executive’s right the grant date unless it has vested pursuant to healthcare continuation benefits under COBRAits terms prior to that date; and
(viix) Payments falling under Section 10(b)iv shall, if each other stock or stock equivalent grant granted to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after Executive by the Executive’s termination of employment. Provided, Company which has not vested prior to the extent applicable under Section 409A Qualifying Termination shall remain outstanding and shall continue to vest as a “deferral if Executive had remained in employment following his Date of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)Termination.
Appears in 3 contracts
Samples: Employment Agreement (Westar Energy Inc /Ks), Employment Agreement (Westar Energy Inc /Ks), Employment Agreement (Westar Energy Inc /Ks)
Qualifying Termination. If, prior to A Qualifying Termination occurs if at any time following the Executive’s attainment Start Date, and in the case of age 65Section 9(b), (d) and (e) through the fourth anniversary of the Start Date:
(1) The Corporation terminates Executive’s employment for any reason other than Cause or Disability; or
(2) Executive resigns for “Good Reason”, which means in the absence of Executive’s written consent, Executive’s termination of employment is involuntarily terminated by within ninety (90) days following the Company without Cause expiration of any cure period (and other than due to his Disabilityset forth below) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on following the occurrence of a Change in Control one or more of the Company and ending on following: (i) any diminution or material alteration of Executive’s title, duties, authority or responsibilities (including reporting requirements), including if Executive is not the second anniversary of date most senior officer of the parent company or other entity resulting from any Change in Control (“Protection Period”as defined in Section 13(f) hereof), then whether a strategic, financial or other party effecting such Change in Control; however, excluding an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company shall pay or provide Executive with:
(i) Corporation promptly after receipt of notice by Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
; (ii) Any unpaid annual cash incentive award earned with respect any failure to elect and re-elect (in any fiscal year ending instance occurring prior to an initial public offering of the Corporation’s common stock) or to nominate for re-election (in any instance occurring on or preceding following such an initial public offering), Executive as a member of the date Board of termination, payable when awards are paid generally to senior executives for such year;
Directors; (iii) A proany material breach by the Corporation of a material provision of this Agreement or other material compensatory agreement between Executive and the Corporation or any subsidiary (including any equity or other long-rated annual cash term incentive for the fiscal year in which such termination occursaward agreement), the amount of which shall be based on target performance and a fraction, the numerator of which is not cured by the number of Corporation (or subsidiary) within thirty (30) days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
after notice by Executive; (iv) A lump sum severance payment requiring Executive to be based at any office or location more than fifty (50) miles from the Corporation’s principal offices currently located in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2)San Francisco; provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject the failure of a successor to Executive’s continued co-payment the assets or business of premiumsthe Corporation to assume the obligations of the Corporation under this Agreement. Executive will not resign for Good Reason without first providing the Corporation with written notice within sixty (60) days of his first knowledge of the event that Executive believes constitutes “Good Reason” identifying the acts or omissions constituting the grounds for Good Reason and any cure period provided under such circumstances above. For avoidance of doubt, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements termination of Executive’s continued employment) in effect for active employees employment by reason of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection death shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in not constitute a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)Qualifying Termination.
Appears in 3 contracts
Samples: Employment Agreement (Levi Strauss & Co), Employment Agreement (Levi Strauss & Co), Employment Agreement (Levi Strauss & Co)
Qualifying Termination. IfIf the employment of Executive terminates pursuant to a Qualifying Termination, prior to Executive’s attainment then:
(A) within five (5) business days following the Date of age 65Termination, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide to Executive with:a lump-sum cash payment equal to the sum of
(iI) Executive’s Accrued Obligations, Annual Base Salary payable in accordance with Section 8(a)(ithrough the Date of Termination;
(II) bonus amounts payable to Executive for prior fiscal years (to the extent not previously paid);
(iiIII) Any unpaid a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the Date of Termination occurs (to the extent not previously paid) in an amount of which shall be based on target performance and at least equal to (1) Executive’s Bonus Amount multiplied by a fraction, the numerator of which is the number of days elapsed during in a fiscal year in which the performance year Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (2) any amounts paid to Executive from the Company’s annual incentive plan for the fiscal year in which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;the Date of Termination occurs; and
(ivIV) A lump the cash equivalent of any accrued Paid Time Off; in each case to the extent not already paid.
(B) within five (5) business days following the Date of Termination, the Company shall pay to Executive a cash lump-sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) 2.0 times Executive’s highest Annual Base Salary during the Protection Period 12-month period immediately prior to the Date of Termination, plus (2) his annual target annual cash incentive award multiplied by (B) two (2)2.0 times Executive’s Bonus Amount; provided, unless however, if a Notice of Termination is given by the Company or Executive within four months prior to a Change in Control or one year following a Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable Company shall pay Executive an additional lump-sum cash payment equal to Executive under this subparagraph (ivx) .99 times Executive’s highest Annual Base Salary during the 12-month period immediately prior to the Date of Termination plus (y) .99 times Executive’s Bonus Amount;
(C) the Company shall be paid to Executive in equal semi-monthly payroll installments over continue, for a period of twenty-four three (243) months, not in a lump sumyears following Executive’s Date of Termination, to the extent necessary to avoid the application of Section 409A(a)(1)(A) provide Executive (and (B);
(v) Subject to Executive’s dependents, if applicable) with substantially similar levels of medical, dental, and life insurance benefits upon substantially similar terms and conditions as Executive would have been entitled to receive if he had continued co-in employment; provided, that, if Executive cannot continue to participate in the Company benefit plans providing such benefits, the Company shall provide a monthly cash payment over the same three (3) year period to reimburse Executive for the cost of premiumspremiums comparable to those that would be required to receive such benefits on a substantially similar basis, continued participation for two (2) years in plus the amount of any conversion fees required to convert from group coverage to individual coverage under the Company’s medical benefits plan which covers Executive and his eligible dependents upon existing benefit plans (the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company“Benefits Monthly Payments”). In the event Executive obtains other employment cannot continue to participate in the Company benefit plans providing such benefits, Executive shall present the Company with one or more benefit plans that offers Executive has obtained or intends to obtain that provide benefits on a substantially similar basis as the benefits provided to Executive prior to the Date of Termination (and acknowledgment from the provider of such benefit plans that such benefit plans have been or more favorable medical benefitscan be obtained by Executive on those terms, including, without limitation, at least substantially similar scope of coverage, substantially similar deductibles and substantially similar co-payments), then the Benefits Monthly Payment shall be made based on the premiums plus any other administrative fees (except co-payments) charged by the company offering such continuation of coverage plans. If it is determined by the Company under this subsection that any portion of the Benefits Monthly Payment constitutes taxable wages for federal income and/or employment tax purposes, the Company agrees to pay Executive an additional amount (the “Benefits Gross-Up Payment”) such that the net amount retained by Executive from the Benefits Monthly Payment and the Benefits Gross-Up Payment, after reduction for any federal, state and local income and employment taxes on the Benefits Monthly Payment and the Benefits Gross-Up Payment, shall immediately ceaseequal the Benefits Monthly Payment. The continuation of health Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive benefits under this subsection from such employer, the benefits described herein shall reduce be secondary to such benefits during the period of coverage and count against Executive’s right eligibility, but only to healthcare continuation the extent that the Company reimburses Executive for any increased cost and provides any additional benefits under COBRAnecessary to give Executive the benefits provided hereunder; and
(viD) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s rights with respect to all outstanding stock options, stock appreciation rights and other equity based awards (“Awards”) in connection with any termination of employment. Provided, to including a Qualifying Termination, shall be governed exclusively by the extent applicable under Section 409A as a “deferral terms of compensation,” and not as a “shortthe Protection One, Inc. 2008 Long-term deferral” under Treasury Regulation Section 1.409A-1(b)(4)Term Incentive Plan, the payments Protection One, Inc. 2004 Stock Option Plan, the Protection One, Inc. Stock Appreciation Rights Plan, the Protection One, Inc. 2010 Stock Appreciation Rights Plan and benefits payable to Executive under the grant and option agreements provided thereunder (provided, for the avoidance of doubt, that this Section 10(b5(a)(D) shall not be subject construed to affect or modify the Safe Harbor and Postponement application of Section 6 of this Agreement); provided at Section 8(c)(iv)that in no circumstance shall such Award be exercisable later than the earlier of the latest date such award could have expired by its original terms under any circumstances or the 10th anniversary of the original date of grant of such Award.
Appears in 3 contracts
Samples: Employment Agreement (Protection One Inc), Employment Agreement (Protection One Inc), Employment Agreement (Protection One Inc)
Qualifying Termination. If, prior to If the Executive’s attainment of age 65, Executive’s 's employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only a Qualifying Termination during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company Executive shall pay or provide Executive withbe entitled to the following benefits:
(i) a pro rata portion (based on the number of calendar days that have elapsed before the Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii's Date of Termination) Any unpaid of the Executive's plan/target annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive in effect for the fiscal year in which such termination the Date of Termination occurs; provided that, if the Executive is entitled to receive a retention/stay bonus in connection with the Change in Control that is payable with respect to the fiscal year in which the Executive's Qualifying Termination occurs, the Executive shall receive the greater of the applicable stay or retention bonus or the pro rata plan/target bonus provided herein, but the Executive shall not be entitled to both the retention/stay bonus and the pro rata plan/target bonus provided herein;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two (2) times the sum of (A) the higher of (I) the Executive's annual base salary in effect immediately before the event or circumstance upon which the Notice of Termination is based or (II) the Executive's annual base salary in effect immediately before the Change in Control and (B) the higher of (x) the highest award paid or payable to the Executive pursuant to the Company's annual incentive plan for each of the two measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based (determined without reference to any guaranteed annual bonus under any retention/stay bonus program of the Company but taking into account the amount of which shall be any such annual bonus that would have been paid to the Executive based on actual performance but for any such guarantee) or (y) the Executive's plan/target performance bonus opportunity for the fiscal year in which Executive's Qualifying Termination occurs, without giving effect to any reduction in the Executive's plan/target annual incentive bonus opportunity on or after a Change in Control;
(iii) $10,000 for two years of tax and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such yearfinancial planning services;
(iv) A lump sum severance payment full and immediate vesting of all options, awards of restricted stock and any other equity or equity-based awards held by the Executive. All options held by the Executive will be exercisable for the applicable period specified in the aggregate amount equal relevant option agreement. To be eligible to receive benefits under this Section 4(d), the Executive shall be required to execute and deliver a valid, binding and irrevocable general release in substantially the form attached hereto as Exhibit A (which the Company shall deliver to the product Executive promptly after the date of (Ahis Qualifying Termination). The payments provided for in this Section 4(d) shall be made not later than the sum of (1) Executive’s highest Base Salary during date the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2)release described above becomes binding and irrevocable under applicable law; provided, unless however, that, if the Change amounts of Control occurring such payments cannot be finally determined on or preceding before such termination also meets day, the requirements Company shall pay to the Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and shall pay the remainder of such payments (together with interest at the rate provided in Section 409A(a)(2)(A)(v1274(b)(2)(B) and Treasury Regulation Section 1.409A-3(i)(5) of the Internal Revenue Code of 1986, as amended (or any successor provision) thereunder (a “409A Change in Control”the "Code"), as soon as the amount payable thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefitsdue, such continuation of coverage excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 1274(b)(2)(B) of the Code). When payments are made under this subsection Section, the Company shall immediately cease. The continuation of health benefits under this subsection provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, attached to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(ivstatement).
Appears in 3 contracts
Samples: Executive Severance Agreement (Officemax Inc /Oh/), Executive Severance Agreement (Officemax Inc /Oh/), Executive Severance Agreement (Officemax Inc /Oh/)
Qualifying Termination. If, prior to Executive’s attainment of age 65during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) for Cause or is voluntarily terminated by Executive for Good ReasonDisability (each, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection PeriodQualifying Termination”), then the Company shall pay or provide Executive withthen, subject to Section 6 hereof:
(i1) Executive’s Accrued Obligations, payable the Bank shall pay to Executive in accordance with Section 8(a)(i);
a lump sum in cash within thirty (ii30) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding days after the date of termination, payable when awards are the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid generally (the “Accrued Salary”), (ii) any earned and unpaid Annual Bonus for any year prior to senior executives for such yearthe year in which the date of termination occurs, and (iii) any unreimbursed business expenses incurred by Executive on or before the date of termination;
(iii2) A pro-rated annual cash incentive Executive shall be entitled to receive a pro rata portion of the Annual Bonus for the fiscal year in which such the date of termination occurs, equal to (i) the amount of which shall be Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on target actual performance and under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days elapsed worked by Executive during the performance such final year through the date of termination and the denominator of which is 365365 (the “Final Year Pro Rata Bonus”), which pro-rated annual cash incentive award and such Final Year Pro Rata Bonus shall be paid when a single lump sum cash payment at the time such bonus awards are normally paid generally to senior executives for such plan year;
(iv3) A lump sum severance payment in the aggregate Bank shall pay to Executive an amount equal to the product sum of (Ax) Executive’s then-current Base Salary plus (y) the average of the Annual Bonuses earned by Executive for each of the three (3) calendar years immediately preceding the year in which the date of termination occurs (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occurs during the period beginning three months prior to, and ending eighteen (18) months after the closing of, a Change in Control (as defined in Exhibit A attached hereto), then the Bank shall pay to Executive an amount equal to one and five-tenths (1.5) times the sum of (1i) Executive’s highest then-current Base Salary plus (ii) the average of the Annual Bonuses earned by Executive for each of the three calendar years immediately preceding the year in which the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and 11 hereof, the Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall be paid in a single lump sum in cash within sixty (60) days following the date of termination (except that the excess of the CIC Severance Payment over the non-CIC Severance Payment on the date of the Qualifying Termination shall be paid within sixty (60) days following the date of the closing of the relevant Change in Control if the termination of employment occurs during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless period beginning three months prior to and ending on the Change date of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control), the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the CIC Severance Payment and the Non-CIC Severance Payment;
(4) if Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of the Code (COBRA), then for eighteen (18) months following the date of termination (the “COBRA Reimbursement Period”), the amount payable Bank shall pay to Executive monthly payments (the “COBRA Payments”) of an amount equal to the excess of (a) the COBRA cost of such coverage over (b) the amount that Executive would have had to pay for such coverage if he had remained employed during the COBRA Reimbursement Period and paid the active employee rate for such coverage, less withholding for taxes and other similar items; provided, however, that (i) if Executive becomes eligible to receive group health benefits under this subparagraph a program of a subsequent employer or otherwise, the Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ivii) the COBRA Reimbursement Period shall be paid only run for the period during which Executive is eligible to elect health coverage under COBRA and timely elects such coverage;
(5) the Bank shall continue to pay (no less frequently than monthly) Executive’s long-term disability premiums and life insurance premiums for Executive in equal semi-monthly payroll installments over for a period of twenty-four twelve (2412) months, not in a lump sum, to months (the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B“Other Premium Payments”);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi6) Payments falling under Section 10(b)iv shallto the extent not theretofore paid or provided, if the Bank shall timely pay or provide to Executive any other amounts or benefits required to be paid in a lump sum pursuant or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Bank and its affiliated companies (such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments other amounts and benefits payable to Executive under this Section 10(b) shall be subject hereinafter referred to as the Safe Harbor and Postponement provided at Section 8(c)(iv“Other Benefits”).
Appears in 3 contracts
Samples: Employment Agreement (Prime Meridian Holding Co), Employment Agreement (Prime Meridian Holding Co), Employment Agreement (Prime Meridian Holding Co)
Qualifying Termination. IfUpon a Qualifying Termination that does not occur during a CIC Protection Period, prior subject to Executive’s attainment execution and non-revocation of age 65a release of claims, Executive’s employment is involuntarily terminated in the form provided by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection PeriodRelease”), then within the Company time period specified therein and Executive’s continued compliance with the provisions of the Confidentiality Agreement and Sections 4, 5, 6 and 8(k) Executive shall pay or provide Executive withbe entitled to receive:
(i) aggregate severance payments in an amount equal to the sum of (A) Executive’s Accrued Obligationsannual base salary at the rate in effect on the Termination Date (and prior to any reduction that constitutes Good Reason) and (B) Executive’s target annual bonus for the year in which the Termination Date occurs, payable in equal installments in accordance with Section 8(a)(i)the Company’s normal payroll practices for the 12 months following the date the Release becomes effective and irrevocable; provided, that if the period during which the Release could become effective and irrevocable spans two calendar years, payments of such installments shall not commence until the first normal payroll date in the second calendar year;
(ii) Any unpaid annual cash incentive award earned with respect subject to Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and subject to Executive’s copayment of premium amounts at the active employees’ rate, reimbursement for the amount of the remainder of the premiums for Executive’s and his or her covered dependents’ participation in the Company’s group health plans pursuant to COBRA for a period ending on the earliest of (A) the first anniversary of the Termination Date, (B) Executive becoming eligible for other employer-sponsored group health benefits or Medicare, and (C) the expiration of Executive’s rights under COBRA; provided, however, that in the event that the benefits provided herein would subject the Company or any of the Affiliates to any fiscal year ending on tax or preceding penalty under the date Patient Protection and Affordable Care Act (the “PPACA”) or Section 105(h) of terminationthe Internal Revenue Code of 1986 (the “Code”), payable when awards are paid generally Executive and the Company agree to senior executives for such yearwork together in good faith to restructure the foregoing benefit;
(iii) A a pro-rated rata portion of the actual annual cash incentive bonus that Executive would have earned for the fiscal year in which such termination the Termination Date occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed Executive is employed during the performance year through such fiscal year, payable on the date when bonuses are otherwise paid to the Company’s executives and in all events by March 15 of termination and the denominator of calendar year following the calendar year in which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;the Termination Date occurs; and
(iv) A lump sum severance payment any earned but unpaid annual bonus for the fiscal year preceding the fiscal year in which the aggregate amount equal to Termination Date occurs, payable on the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding date when bonuses for such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be fiscal year are otherwise paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except executives for the requirements of such fiscal year. Following Executive’s continued employment) Qualifying Termination that does not occur during a CIC Protection Period, except as set forth in effect for active employees of the Company. In the event this Section 3(b), Executive obtains shall have no further rights to any compensation or any other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)Agreement.
Appears in 3 contracts
Samples: Severance Agreement (Zevia PBC), Severance Agreement (Zevia PBC), Severance Agreement (Zevia PBC)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on 90 days prior to the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A proPro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such yearRated Bonus;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest then Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two one and one half (21.5), to be paid within ten (10) business days after Executive’s termination from employment; provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four eighteen (2418) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two eighteen (218) years months in the Company’s medical benefits plan which covers Executive (and his eligible dependents dependents) upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shallAll of Executive’s unvested options and long-term incentive awards granted to Executive through the date of termination shall vest and all Executive's options shall continue to be exercisable until the earlier of (x) one year after the date of termination and (y) the expiration of the original scheduled term of such options. In addition, if to this Section 10(c) applies, any limitation on the acceleration of the vesting of options (that would otherwise be paid in a lump sum applicable pursuant to Section 7.4 of Rexnord Corporation 2012 Performance Incentive Plan or otherwise) to reduce or eliminate the effects of Section 280G and/or Section 4999 of the Code, shall not be implemented unless the after-tax amount Executive receives would be increased (as compared to the after-tax amount Executive would receive in the absence of such sectionlimitation on acceleration of vesting), and in such event such limitation on acceleration of vesting shall be paid within ten (10) business days after implemented to the minimum extent necessary to maximize the Executive’s termination 's after-tax amount, provided that Executive shall determine the order in which such limitation on acceleration of employmentvesting is applied or, solely if required to comply with Section 409A of the Code, the option acceleration limitation shall be applied in the reverse order of scheduled vesting dates (i.e., the option tranche that would have vested first in the absence of a Change in Control will be the last tranche to have its acceleration limited). Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b10(c) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv). For the avoidance of doubt, the provisions of this Section 10(c) shall not apply unless a Change in Control actually occurs. In the event of a termination of employment during the 90 days prior to the occurrence of a Change in Control, (x) the payment under Section 10(c)(iv) shall be payable (or commence to be payable, as applicable) within ten days following the Change in Control (not termination of employment), and (y) the acceleration of vesting of Executive’s unvested options and long-term incentive awards shall not occur until the occurrence of the Change in Control (and if such options and awards would otherwise be forfeited during such 90 day period in the absence of a Change in Control, such awards shall remain outstanding for up to 90 days solely for the purpose of determining whether Executive becomes entitled to vest in such awards pursuant to Section 10(c)(vi) but otherwise shall not be payable or exercisable following the date on which they would have otherwise been forfeited (unless the Change in Control subsequently occurs during such 90-day period)).
Appears in 2 contracts
Samples: Employment Agreement (Rexnord Corp), Employment Agreement (Rexnord Corp)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of in Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 2 contracts
Samples: Executive Employment Agreement (Belden Inc.), Executive Employment Agreement (Belden Inc.)
Qualifying Termination. If, prior to Executive’s attainment of age 65during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) for Cause or is voluntarily terminated by Executive for Good ReasonDisability (each, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection PeriodQualifying Termination”), then the Company shall pay or provide Executive withthen, subject to Section 6 hereof:
(i1) Executive’s Accrued Obligations, payable the Bank shall pay to Executive in accordance with Section 8(a)(i);
a lump sum in cash within thirty (ii30) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding days after the date of termination, payable when awards are the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid generally to senior executives for such year(the “Accrued Salary”);
(iii2) A pro-rated annual cash incentive Executive shall be entitled to receive a pro rata portion of the Annual Bonus for the fiscal year in which such the date of termination occurs, equal to (i) the amount of which shall be Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on target actual performance and under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days elapsed worked by Executive during the performance such final year through the date of termination and the denominator of which is 365365 (the “Final Year Pro Rata Bonus”), which pro-rated annual cash incentive award and such Final Year Pro Rata Bonus shall be paid when a single lump sum cash payment at the time such bonus awards are normally paid generally to senior executives for such plan year;
(iv3) the Bank shall pay to Executive an amount equal to two (2) times Executive’s then-current Base Salary (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occurs during the period beginning three months prior to, and ending eighteen (18) months after the closing of, a Change in Control (as defined in Exhibit A attached hereto), then the Bank shall pay to Executive an amount equal to 2.99 times the sum of (i) Executive’s then-current Base Salary plus (ii) the average of the Annual Bonuses earned by Executive for each of the three calendar years immediately preceding the year in which the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and 12 hereof, the Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall be paid in a single lump sum severance in cash within sixty (60) days following the date of termination, the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the CIC Severance Payment and the Non-CIC Severance Payment;
(4) if Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of the aggregate Code (COBRA), then for eighteen (18) months following the date of termination (the “COBRA Reimbursement Period”), the Bank shall pay to Executive monthly payments (the “COBRA Payments”) of an amount equal to the product excess of (Aa) the sum COBRA cost of such coverage over (1b) Executive’s highest Base Salary the amount that Executive would have had to pay for such coverage if he had remained employed during the Protection COBRA Reimbursement Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2)and paid the active employee rate for such coverage, less withholding for taxes and other similar items; provided, unless the Change however, that (i) that if Executive becomes eligible to receive group health benefits under a program of Control occurring on a subsequent employer or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”)otherwise, the amount payable Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ii) the COBRA Reimbursement Period shall only run for the period during which Executive is eligible to elect health coverage under this subparagraph COBRA and timely elects such coverage;
(iv5) the Bank shall be paid continue to pay Executive’s long term disability premiums and life insurance premiums for Executive in equal semi-monthly payroll installments over for a period of twenty-four eighteen (2418) months, not in a lump sum, to months (the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B“Other Premium Payments”);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi6) Payments falling under Section 10(b)iv shallto the extent not theretofore paid or provided, if the Bank shall timely pay or provide to Executive any other amounts or benefits required to be paid in a lump sum pursuant or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Bank and its affiliated companies (such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments other amounts and benefits payable to Executive under this Section 10(b) shall be subject hereinafter referred to as the Safe Harbor and Postponement provided at Section 8(c)(iv“Other Benefits”).
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (Prime Meridian Holding Co)
Qualifying Termination. IfExcept as applies under paragraph 4(b), if prior to Executive’s attainment the expiration of age 65the Employment Period (without regard to any early termination of the Employment Period as set forth in this paragraph 4), Executive’s employment is involuntarily terminated by the Company is terminated without Cause (and other than due to his Disability) or is voluntarily terminated by Executive pursuant to a Constructive Termination, or the Company gives Executive notice pursuant to paragraph 1 of this Agreement that it is not renewing the Employment Period, then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment or the end of the Employment Period in the case of non-renewal (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control any fiscal year of the Company and ending on which ended prior to the second anniversary of date Termination Date, all earned but unused Vacation as of the Change in Control Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Protection PeriodAccrued Obligations”), then the Company shall pay or provide Executive with:
(i) and subject to Executive’s Accrued Obligationscontinued compliance with paragraphs 6, 7 and 8 hereof, (B) an amount equal to the the product of (x) one (1) and (y) the sum of Executive’s (I) Base Salary and (II) Target Bonus in effect on the Termination Date, payable in equal monthly installments, in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending the Company’s normal payroll practices in effect on or preceding the date of terminationTermination Date, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurstwelve (12) month period following the Termination Date, (C) an amount (the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro“Pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivRata Amount”) A lump sum severance payment in the aggregate amount equal to the product of (Ap) the sum percentage of the days in the applicable calendar year that Executive is employed by the Company and (1q) Executive’s highest Base Salary annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(b) hereof, (D) continued Benefits during the Protection Period plus period beginning on the Termination Date and ending on the first to occur of (2xx) his annual target annual cash incentive award multiplied the date twelve (12) months after the Termination Date and (yy) the first date after the date hereof on which Executive accepts employment from a company or other entity other than a member of the Company Group, and (E) outplacement services provided by (B) two (2); provideda nationally-recognized outplacement firm, unless such services to be commensurate with the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (services commonly provided to a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not person in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject position comparable to Executive’s continued co-payment of premiums, continued participation for two (2) years in position with the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) , subject, in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 2 contracts
Samples: Employment Agreement (Jason Industries, Inc.), Employment Agreement (Jason Industries, Inc.)
Qualifying Termination. If, prior to Executive’s 's attainment of age 65, Executive’s 's employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”"PROTECTION PERIOD"), then the Company shall pay or provide Executive with:
(i) Executive’s 's Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s 's highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s 's continued co-payment of premiums, continued participation for two (2) years in the Company’s 's medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s 's continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s 's right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to 8(c)iv shall be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination 's receipt of employment. Provided, to the extent applicable under Section 409A as calculation from a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)specified advisor.
Appears in 2 contracts
Samples: Executive Employment Agreement (Belden CDT Inc.), Executive Employment Agreement (Belden CDT Inc.)
Qualifying Termination. IfExcept as applies under paragraph 4(b), if Executive’s employment by the Company is terminated without Cause (as herein defined) or by Executive pursuant to a Constructive Termination (as herein defined), then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for any fiscal year of the Company which ended prior to the Termination Date, all earned but unused Vacation as of the Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Accrued Obligations”), and subject to Executive’s attainment of age 65continued compliance with paragraphs 6, Executive’s employment is involuntarily terminated by the Company without Cause 7, 8, 9 and 10 hereof, (and other than due B) an amount equal to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control one times (“Protection Period”), then the Company shall pay or provide Executive with:
(i1X) Executive’s Accrued ObligationsBase Salary in effect on the Termination Date, payable in equal monthly installments, in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending the Company’s normal payroll practices in effect on or preceding the date of terminationTermination Date, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurstwelve (12) month period following the Termination Date, (C) an amount (the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro“Pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivRata Amount”) A lump sum severance payment in the aggregate amount equal to the product of (Ap) the sum percentage of the days in the applicable calendar year that Executive is employed by the Company and (1q) Executive’s highest Base Salary annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(c) hereof, (E) if the Executive and/or his dependents elect continuation coverage under COBRA, payment by the Company of the COBRA premiums for the Executive and/or his dependents in the same amount paid by the Company prior to the Termination Date during the Protection Period plus period beginning on the Termination Date and ending on the first to occur of (2xx) his annual target annual cash incentive award multiplied by the date twelve (B12) two months after the Termination Date and (2); providedyy) the first day Executive becomes eligible for similar benefits under another employer’s plans, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v(F) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid allowed under the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiumsapplicable plans, continued participation for two (2) years in the Company’s medical life, long-term disability, and group accident plans beginning on the Termination Date and ending on the first to occur of (xx) the date twelve (12) months after the Termination Date and (yy) the first day Executive becomes eligible for similar benefits plan which covers Executive under another employer’s plans, and his eligible dependents upon (G) outplacement services provided by a nationally-recognized outplacement firm, such services to be commensurate with the same terms and conditions (except for the requirements of services commonly provided to a person in a position comparable to Executive’s continued employment) in effect for active employees of position with the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shallsubject, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 2 contracts
Samples: Employment Agreement (Jason Industries, Inc.), Employment Agreement (Jason Industries, Inc.)
Qualifying Termination. If, prior within two (2) years following a Change in Control, Employee incurs a Separation from Service, such Separation from Service shall be considered a Qualifying Termination unless:
(a) Employee voluntarily incurs a Separation from Service. It shall not be considered, however, a voluntary Separation from Service if, following the Change in Control, Employee incurs a Separation from Service for good reason. For these purposes, “good reason” shall mean the occurrence of any one or more of the following conditions without Employee’s express written consent:
(i) a material diminution in Employee’s authority, duties or responsibilities;
(ii) a material diminution in Employee’s rate of annual base salary or a material diminution in Employee’s rate of annual compensation (when viewed in the aggregate taking into account Employee’s rate of annual base salary, target annual incentive, target grant-date value of long-term incentives, and group benefits), excluding any reduction in group benefits that is applicable to Executiveemployees generally;
(iii) a change in the location of Employee’s attainment principal workplace for Xxxxxxx (or the subsidiary of age 65Xxxxxxx that employs Employee, Executiveas applicable) to a location that is more than fifty (50) miles from Employee’s employment is involuntarily terminated by principal workplace as of the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on date immediately preceding the occurrence of a Change in Control and that results in an increased commute for Employee from his or her principal residence (except for reasonable periods of the Company and ending required travel on the second anniversary of date of the Change in Control (“Protection Period”Xxxxxxx business), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;; or
(iv) A lump sum severance payment a material breach by Xxxxxxx (or, if Employee is employed by a Xxxxxxx subsidiary, the subsidiary) of any agreement with Employee; provided, however, that any such condition shall not constitute “good reason” unless both (x) Employee provides written notice to Xxxxxxx of the condition claimed to constitute good reason within ninety (90) days of the initial existence of such condition, and (y) Xxxxxxx fails to remedy (or fails to cause the subsidiary that employs Employee to remedy, as the case may be) such condition within thirty (30) days of receiving such written notice thereof; and provided, further, that in all events Employee’s Separation from Service with Xxxxxxx (or the aggregate amount equal to the product of (Asubsidiary that employs Employee, as applicable) the sum of shall not be treated as a Separation from Service for “good reason” unless such separation occurs not more than one (1) Executive’s highest Base Salary during year following the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless initial existence of the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a condition claimed to constitute “409A Change in Controlgood reason.”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(vb) Subject The Separation from Service is on account of Employee’s death or disability. As used herein, “disability” refers to Executive’s continued co-payment an illness or accident that causes Employee to be unable to perform the duties of premiums, continued participation his or her job for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar six months or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; andconsecutive months.
(vic) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a Employee incurs an involuntary Separation from Service for “deferral of compensation,cause.” and not as a For this purpose “short-term deferralcause” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).mean:
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Term of this Agreement the occurrence ---------------------- employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five days following the Date of Termination a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligations's Base Salary through the Date of Termination and any bonus amounts which have become payable to the extent not theretofore paid or deferred, payable in accordance with Section 8(a)(i);
(iiB) Any unpaid a pro rata portion of Executive's annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive's Date of Termination occurs in an amount at least equal to (1) Executive's Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company's annual incentive plan for the fiscal year in which pro-rated annual Executive's Date of Termination occurs, (C) any accrued vacation pay, and (D) the cash incentive award shall be paid when awards are paid generally equivalent of any accumulated sick leave; in each case to senior executives for such yearthe extent not theretofore paid;
(ivii) A lump within five days following the Date of Termination, a lump-sum severance payment in the aggregate cash amount equal to the product of (A) the sum of (1i) 2.99 times the higher of Executive’s 's highest annual rate of Base Salary during the Protection Period 12-month period immediately prior to Executive's Date of Termination and Executive's Adjusted Base Salary, plus (2ii) his annual target annual cash incentive award multiplied by 2.99 times Executive's Bonus Amount;
(Biii) two (2); providedthe Company shall continue to provide, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over for a period of twenty-four three (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (23) years in following Executive's Date of Termination, Executive (and Executive's dependents, if applicable) with the Company’s same level of medical, dental, accident, disability and life insurance benefits and following such three year period retiree medical and dental benefits plan which covers for the life of Executive and his eligible dependents upon substantially the same terms and conditions (except including contributions required by Executive for such benefits) as existed on the requirements date hereof or, if more favorable to the Executive, as may exist immediately prior to Executive's Date of Executive’s Termination; provided, that, if Executive cannot continue to participate in the Company plans providing such benefits or the Company shall modify or terminate any such plans, the Company shall otherwise provide such benefits on the same after-tax basis as if continued employment) participation had been permitted. Notwithstanding the foregoing, in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefitsbecomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce during the period of coverage Executive's eligibility, but only to the extent that the Company reimburses Executive for any increased cost and count against provides any additional benefits necessary to give Executive the benefits provided hereunder;
(iv) Executive shall be entitled to the provisions of the Executive Salary Continuation Plan and, notwithstanding anything to the contrary in such Plan, (i) shall be deemed to be sixty-five years of age as of the Date of Termination for purposes of determining the Retirement Benefit and commencement of payment thereof under Section 4.1 of the Plan (without regard to Executive’s right 's actual age or date of commencement of retirement benefit payments under the Western Resources, Inc. Retirement Plan) and Vesting under Section 4.3 of the Plan and (ii) Compensation for purposes of calculating the Retirement Benefit thereunder shall be deemed to healthcare continuation benefits under COBRA; andbe the sum of (A) the higher of Executive's Adjusted Base Salary and Executive's Base Salary, plus (B) Executive's Bonus Amount;
(v) the cost of outplacement services of a nationally recognized executive employment agency selected by Executive and reasonably acceptable to the Company, or in lieu of such outplacement services Executive may elect to receive a lump sum of $50,000;
(vi) Payments falling under Section 10(b)iv shallcontinuation of the Company's executive financial and legal counseling services program as in effect on the date hereof or if more favorable to Executive, as may be available to Executive or other comparable executives of the Company thereafter, for three (3) years following Executive's Date of Termination;
(vii) continuation of participation in the Company's matching gift program as in effect on the date hereof or if more favorable to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination , as may be available to Executive or other comparable executives of employment. Providedthe Company thereafter, to the extent applicable under Section 409A as if Executive continued as a “deferral senior executive of compensation,” the Company, for three (3) years following Executive's Date of Termination;
(viii) if Executive has deferred compensation agreements or deferred retention payments with the Company, or any of its subsidiaries or affiliates that (i) have not fully vested or contain any restriction on the payment of benefits thereunder (other than the passage of time) [Certain Executives: other than the passage of time, except that payment under Executive's Deferred Compensation agreements with Kansas Gas and not as Electric Company shall commence upon a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4Qualifying Termination] such benefits shall upon a Qualifying Termination become fully vested and all such restrictions shall lapse, and/or (ii) provide for variable interest rates thereon (which interest rates are established by the Company, subsidiary or affiliate), such interest rates shall be fixed for the payments duration of such deferral at the higher of the contract rate and the prime rate established from time to time by Chase Manhattan Bank, New York, New York ("Prime Rate");
(ix) if the Executive is entitled to benefits under any split dollar life insurance agreement, (A) the amount payable to Executive thereunder shall be in accordance with the terms of the agreement, but not less than the Base Amount (as defined in the split dollar insurance agreement) under any such agreement, (B) upon a Change in Control the maximum amount that could be payable to Executive under this Section 10(b) such split dollar life insurance agreement shall be subject deposited in a Rabbi Trust until paid to Executive and (C) following a Change in Control the Safe Harbor total shareholder return calculation under the split dollar agreement shall include any consideration received in the Change in Control and Postponement provided any distribution to shareholders of assets and/or securities at Section 8(c)(iv).or about the time of the Change in Control;
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Term of this Agreement the occurrence ---------------------- employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five days following the Date of Termination a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligations's Base Salary through the Date of Termination and any bonus amounts which have become payable to the extent not theretofore paid or deferred, payable in accordance with Section 8(a)(i);
(iiB) Any unpaid a pro rata portion of Executive's annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive's Date of Termination occurs in an amount at least equal to (1) Executive's Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company's annual incentive plan for the fiscal year in which proExecutive's Date of Termination occurs, (C) any accrued vacation pay, and (D) the cash equivalent of any accumulated sick leave; in each case to the extent not theretofore paid;
(ii) within five days following the Date of Termination, a lump-rated sum cash amount equal to the sum of (i) two (2) times [three (3) times for certain executives] the higher of Executive's highest annual cash incentive award rate of Base Salary during the 12-month period immediately prior to Executive's Date of Termination and Executive's Adjusted Base Salary, plus (ii) two (2) times [three (3) times for certain executives] Executive's Bonus Amount;
(iii) the Company shall continue to provide, for a period of two (2) years [three (3) years for certain executives] following Executive's Date of Termination, Executive (and Executive's dependents, if applicable) with the same level of medical, dental, accident, disability and life insurance benefits upon substantially the same terms and conditions (including contributions required by Executive for such benefits) as existed on Executive's Date of Termination or, if more favorable to Executive, as may exist immediately prior to the Change of Control; provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be paid when awards are paid generally secondary to senior executives such benefits during the period of Executive's eligibility, but only to the extent that the Company reimburses Executive for such year;any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder.
(iv) A Non-SERP Executives Only: within five days following the Date of Termination, a lump sum severance payment in the aggregate cash amount equal to the product actuarial equivalent of (A) the sum of (1) amount by which Executive’s highest Base Salary during 's total vested benefits under the Protection Period plus Western Resources Inc. Retirement Plan, computed as if Executive had two (2) his annual target annual cash incentive award multiplied by (B) two (2); providedadditional years of benefit accrual service, unless exceed Executive's actual pension benefits. For this computation, Executive's final average salary shall be deemed to be the Change higher of Control occurring on or preceding such termination also meets Executive's Base Salary and Executive's Base Salary in effect just prior to the requirements time a Notice of Section 409A(a)(2)(A)(v) Termination is given and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable benefit and accrual formulas and actuarial assumptions shall be no less favorable to Executive under this subparagraph (iv) shall be paid to Executive than those in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to effect at the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B)same time;]
(v) Subject the cost (not to exceed $20,000) of outplacement services of a nationally recognized executive employment agency selected by Executive and reasonably acceptable to the Company;
(vi) continuation of the Company's executive financial and legal counseling services program as in effect on the Date of Termination or if more favorable to Executive’s continued co-payment , as may be available to Executive or other comparable executives of premiumsthe Company immediately prior to the Change in Control, continued participation for two (2) years in [three (3) years for certain executives] following Executive's Date of Termination;
(vii) if Executive has deferred compensation agreements with the Company’s medical , or any of its subsidiaries or affiliates that (i) have not fully vested or contain any restriction on the payment of benefits plan thereunder (other than the passage of time) such benefits shall upon a Qualifying Termination become fully vested and all such restrictions shall lapse, and/or (ii) provide for variable interest rates thereon (which covers Executive and his eligible dependents upon interest rates are established by the same terms and conditions (except Company, subsidiary or affiliate), such interest rates shall be fixed for the requirements duration of Executive’s continued employment) in effect for active employees such deferral at the higher of the Company. In contract rate and the event prime rate established from time to time by Chase Manhattan Bank, New York, New York ("Prime Rate");
(viii) each stock option granted to Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection and outstanding immediately prior to the Qualifying Termination shall be fully exercisable and may be exercised by Executive (or Executive's legal representatives, legatees or distributees) at anytime prior to the expiration date of the applicable option (determined without regard to any earlier termination that would otherwise occur by reason of termination of employment) and each related dividend equivalent shall become fully vested upon such Qualifying Termination;
(ix) each restricted share granted to Executive by the Company and still subject to restrictions immediately cease. The continuation of health benefits under this subsection prior to the Qualifying Termination shall reduce become fully vested and all restrictions shall lapse upon such Qualifying Termination;
(x) each restricted share unit granted to Executive by the period of coverage and count against Executive’s right Company which has not vested prior to healthcare continuation benefits under COBRAthe Qualifying Termination shall become fully vested upon such Qualifying Termination; and
(vixi) Payments falling under Section 10(b)iv shall, if each other stock or stock equivalent grant granted to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after Executive by the Executive’s termination of employment. Provided, Company which has not vested prior to the extent applicable under Section 409A as a “deferral of compensation,” Qualifying Termination shall become fully vested and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) all restrictions shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)lapse upon such Qualifying Termination.
Appears in 1 contract
Samples: Change in Control Agreement (Western Resources Inc /Ks)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s A "Qualifying Termination" occurs if (i) First Federal terminates the Employee's employment is involuntarily terminated by the Company without Cause (and for any reason other than due to his Disabilityfor Cause, disability, or death, or (ii) or is voluntarily terminated by Executive the Employee terminates employment for Good Reason, in either case only during the period commencing on the occurrence of . If a Qualifying Termination occurs prior to or more than 24 months following a Change in Control (defined in paragraph (e) below) that occurs during the term of this Agreement, and contingent on receipt of an executed and unrevoked release of claims as described in Section 3(j) (the "Release"), the Company and ending First Federal jointly must: (A) pay a lump sum to the Employee within 7 days commencing on the second anniversary of effective date of the Change executed and unrevoked Release: (1) the Employee's Annual Base Salary at the rate in Control effect immediately before the Date of Termination, and (“Protection Period”), then 2) the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash pro rata portion of any incentive award or bonus earned for the year in which the Date of Termination occurs (with respect to any fiscal year ending proration determined based on or preceding the date number of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for months in the fiscal year in which such termination occursthe Employee is employed with the First Federal), the amount of which shall which, if any, is to be based on target performance determined by the First Federal Board of Directors in its sole discretion, and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless pay to the Change Employee within 7 days of Control occurring on or preceding such termination also meets the requirements effective date of Section 409A(a)(2)(A)(v) the executed and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (unrevoked release a “409A Change lump sum in Control”), the amount payable of $28,000.00, which is equivalent to Executive the cost of coverage under this subparagraph Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (iv"COBRA") shall be paid to Executive in equal semi-monthly payroll installments over for the Employee and eligible dependents for a period of twenty-four (24) months12 months at the same level of benefits that the Employee had elected on the Date of Termination, provided the Employee and/or eligible dependents timely elect continuation coverage under COBRA within the time period prescribed pursuant to COBRA, and otherwise qualify for continued coverage. A Qualifying Termination does not in a lump suminclude termination for Cause, to the extent necessary to avoid the application termination because of Section 409A(a)(1)(Adeath or disability under Sections 3(f) and (B);
(v3(g) Subject to Executive’s continued co-payment of premiumsthis Agreement, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar voluntary termination, or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)retirement.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withthe following compensation and benefits to Executive:
(i) Within ten (10) days following the Date of Termination, the Company shall pay a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);
to the extent not theretofore paid or deferred, (iiB) Any unpaid a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive’s Date of Termination occurs in an amount at least equal to (1) Executive’s Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company’s annual incentive plan for the fiscal year in which proExecutive’s Date of Termination occurs and (C) any compensation previously deferred by Executive other than pursuant to a tax-rated annual cash incentive award shall be paid when awards are paid generally qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in each case to senior executives for such yearthe extent not theretofore paid;
(ivii) A lump Within ten (10) days following the Date of Termination, the Company shall pay a lump-sum severance payment in the aggregate cash amount equal to the product of (A) the sum of two (12) times Executive’s highest Base Salary annual rate of base salary during the Protection Period 12-month period immediately prior to Executive’s Date of Termination, plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless ) times Executive’s Bonus Amount (provided that the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the total amount payable to Executive under this subparagraph (ivSection 4(a)(ii) shall not be paid to Executive in equal semi-monthly payroll installments over less than $1,200,000);
(iii) For a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to months following Executive’s continued co-payment Date of premiumsTermination, continued participation for two the Company shall provide Executive (2and Executive’s dependents, if applicable) years in with the Company’s medical same level of medical, dental, accident, disability and life insurance benefits plan which covers Executive and his eligible dependents upon substantially the same terms and conditions (except including contributions required by Executive for such benefits) as existed immediately prior to Executive’s Date of Termination (or, if more favorable to Executive, as such benefits and terms and conditions existed immediately prior to the requirements Change in Control); provided, that, if Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted. Notwithstanding the foregoing, in the event Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described herein shall be secondary to such benefits during the period of Executive’s continued employmenteligibility, but only to the extent that the Company reimburses Executive for any increased cost and provides any additional benefits necessary to give Executive the benefits provided hereunder;
(iv) Any Company share options or share (or other equity-based) awards previously granted to Executive, whether vested or not, as of the Date of Termination shall be fully vested as of the Date of Termination, and, notwithstanding any provision to the contrary in effect Executive’s share option award agreement, all unexercised Company share options as of the Date of Termination shall be exercisable until the one (1) year anniversary of the Date of Termination and one half of any unexercised Company share options as of the Date of Termination (without regard to any share options exercised prior to the one (1) year anniversary of the Date of Termination) shall be exercisable between the one (1) year and two (2) year anniversary of the Date of Termination, and the “Right of Recapture” provision in the Executive’s share option award agreement shall no longer be applicable;
(v) To the maximum extent permitted under applicable law, all contributions made by the Company, for active employees the account of Executive, to any and all tax qualified pension plans of the Company (including but not limited to the Section 401(k) plan of the Company) shall immediately vest in full on the Date of Termination. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefitsIf such accelerated vesting is not permitted under applicable law, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after following the Date of Termination, pay to the Executive an additional lump-sum cash amount equal to the sum of the then unvested portions of all such Company contributions; plus
(vi) Outplacement services with a cost of up to $20,000 for a period of up to twelve (12) months shall be made available at the expense of the Company through and at the facilities of a reputable and experienced outplacement services provider selected by the Company with the approval of the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and which approval shall not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)withheld unreasonably.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Archipelago Holdings L L C)
Qualifying Termination. If, prior to Executive’s attainment of age 65during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) for Cause or is voluntarily terminated by Executive for Good ReasonDisability (each, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection PeriodQualifying Termination”), then the Company shall pay or provide Executive withthen, subject to Section 6 hereof:
(i1) Executive’s Accrued Obligations, payable the Bank shall pay to Executive in accordance with Section 8(a)(i);
a lump sum in cash within thirty (ii30) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding days after the date of termination, payable when awards are the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid generally (the “Accrued Salary”), (ii) any earned and unpaid Annual Bonus for any year prior to senior executives for such yearthe year in which the date of termination occurs, and (iii) any unreimbursed business expenses incurred by Executive on or before the date of termination;
(iii2) A pro-rated annual cash incentive Executive shall be entitled to receive a pro rata portion of the Annual Bonus for the fiscal year in which such the date of termination occurs, equal to (i) the amount of which shall be Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on target actual performance and under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days elapsed worked by Executive during the performance such final year through the date of termination and the denominator of which is 365365 (the “Final Year Pro Rata Bonus”), which pro-rated annual cash incentive award and such Final Year Pro Rata Bonus shall be paid when a single lump sum cash payment at the time such bonus awards are normally paid generally to senior executives for such plan year;
(iv3) the Bank shall pay to Executive an amount equal to two (2) times the sum of (x) Executive’s then-current Base Salary plus (y) the average of the Annual Bonuses earned by Executive for each of the three (3) calendar years immediately preceding the year in which the date of termination occurs (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occurs during the period beginning three months prior to, and ending eighteen (18) months after the closing of, a Change in Control (as defined in Exhibit A attached hereto), then the Bank shall pay to Executive an amount equal to 2.99 times the sum of (i) Executive’s then-current Base Salary plus (ii) the average of the Annual Bonuses earned by Executive for each of the three calendar years immediately preceding the year in which the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and 11 hereof, the Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall be paid in a single lump sum severance in cash within sixty (60) days following the date of termination (except that the excess of the CIC Severance Payment over the non-CIC Severance Payment on the date of the Qualifying Termination shall be paid within sixty (60) days following the date of the closing of the relevant Change in Control if the termination of employment occurs during the period beginning three months prior to and ending on the date of the Change in Control), the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the CIC Severance Payment and the Non-CIC Severance Payment;
(4) if Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of the aggregate Code (COBRA), then for thirty-six (36) months following the date of termination (the “COBRA Reimbursement Period”), the Bank shall pay to Executive monthly payments (the “COBRA Payments”) of an amount equal to the product excess of (Aa) the sum COBRA cost of such coverage over (1b) the amount that Executive would have had to pay for such coverage if he had remained employed during the COBRA Reimbursement Period and paid the active employee rate for such coverage, less withholding for taxes and other similar items; provided, however, that (i) if Executive becomes eligible to receive group health benefits under a program of a subsequent employer or otherwise, the Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ii) the COBRA Reimbursement Period shall only run for the period during which Executive is eligible to elect health coverage under COBRA and timely elects such coverage;
(5) the Bank shall continue to pay (no less frequently than monthly) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) long-term disability premiums and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to life insurance premiums for Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over for a period of twenty-four eighteen (2418) months, not in a lump sum, to months (the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B“Other Premium Payments”);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi6) Payments falling under Section 10(b)iv shallto the extent not theretofore paid or provided, if the Bank shall timely pay or provide to Executive any other amounts or benefits required to be paid in a lump sum pursuant or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Bank and its affiliated companies (such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments other amounts and benefits payable to Executive under this Section 10(b) shall be subject hereinafter referred to as the Safe Harbor and Postponement provided at Section 8(c)(iv“Other Benefits”).
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (constitutes a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A409A(a)(l)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to 8(c)iv shall be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination receipt of employmentthe calculation from a specified advisor. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(41.409A-l(b)(4), the payments and benefits payable to Executive under this Section 10(b10(c) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 1 contract
Qualifying Termination. IfExcept as applies under paragraph 4(b), if prior to Executive’s attainment the expiration of age 65the Employment Period (without regard to any early termination of the Employment Period as set forth in this paragraph 4), Executive’s employment is involuntarily terminated by the Company is terminated without Cause (and other than due to his Disability) or is voluntarily terminated by Executive pursuant to a Constructive Termination, or the Company gives Executive notice pursuant to paragraph 1 of this Agreement that it is not renewing the Employment Period, then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment or the end of the Employment Period in the case of non-renewal (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control any fiscal year of the Company and ending on which ended prior to the second anniversary of date Termination Date, all earned but unused Vacation as of the Change in Control Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Protection PeriodAccrued Obligations”), then the Company shall pay or provide Executive with:
and subject to Executive’s continued compliance with paragraphs 6, 7 and 8 hereof, (iB) an amount equal to one times (1X) Executive’s Accrued ObligationsBase Salary in effect on the Termination Date, payable in equal monthly installments, in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending the Company’s normal payroll practices in effect on or preceding the date of terminationTermination Date, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurstwelve (12) month period following the Termination Date, (C) an amount (the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro“Pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivRata Amount”) A lump sum severance payment in the aggregate amount equal to the product of (Ap) the sum percentage of the days in the applicable calendar year that Executive is employed by the Company and (1q) Executive’s highest Base Salary annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(b) hereof, (D) continued Benefits during the Protection Period plus period beginning on the Termination Date and ending on the first to occur of (2xx) his annual target annual cash incentive award multiplied the date twelve (12) months after the Termination Date and (yy) the first date after the date hereof on which Executive accepts employment from a company or other entity other than a member of the Company Group, and (E) outplacement services provided by (B) two (2); provideda nationally-recognized outplacement firm, unless such services to be commensurate with the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (services commonly provided to a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not person in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject position comparable to Executive’s continued co-payment of premiums, continued participation for two (2) years in position with the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) , subject, in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, If the Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only a Qualifying Termination during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company Executive shall pay or provide Executive withbe entitled to the following benefits:
(i) if the Executive’s Accrued ObligationsQualifying Termination occurs in a calendar year subsequent to the year in which the Change in Control occurred, payable a pro rata portion (based on the number of calendar days that have elapsed before the Executive’s Date of Termination) of the Executive’s target or base incentive bonus possible under the Annual Bonus Program for the year in accordance with Section 8(a)(i)which termination occurs;
(ii) Any unpaid annual a lump sum cash payment equal to all outstanding long term incentive award earned with respect awards made to any fiscal year ending on or preceding the date Executive under the long term incentive programs of terminationthe Company (the “LTIP”), payable when awards are paid generally to senior executives for such yearassuming attainment of the applicable maximum performance targets;
(iii) A pro-rated annual cash incentive in lieu of any further salary payments to the Executive for periods subsequent to the fiscal year in which such termination occursDate of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two times the sum of (A) the higher of the Executive’s annual base salary in effect immediately before the event or circumstance upon which shall be the Notice of Termination is based on target performance or such salary in effect immediately before the Change in Control and a fraction, (B) the numerator higher of (x) the highest award made to the Executive pursuant to the Company’s annual incentive plan for each of the three measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based or (y) such highest award in respect of the number of days elapsed during three measuring periods completed immediately before the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such yearChange in Control;
(iv) A a lump sum severance payment amount (utilizing actuarial assumptions for lump sum payments in effect under the aggregate amount Company’s qualified defined benefit retirement plan (the “Retirement Plan”) immediately prior to the Date of Termination) equal to the product excess of (Aa) the actuarial equivalent lump sum value of the benefit under the Retirement Plan (determined without taking into account any early retirement subsidies) and the actuarial equivalent lump sum value of the benefit under any excess or supplemental retirement plan in which the Executive participates (together, the “SERP”), that the Executive would receive if the Executive’s employment continued for two years after the Date of Termination, assuming for this purpose that all accrued benefits are fully vested, the Executive is two years older, such two years of additional service is counted as credited service as an officer under the SERP and assuming that the Executive’s compensation in each of the calendar years fully or partially included because of the additional two years is the greatest of (1i) Executive’s highest Base Salary during the Protection Period plus compensation in the year of termination annualized pursuant to the assumptions used for the Retirement Plan, or (2ii) his annual target annual cash incentive award multiplied by compensation for the last completed calendar year before the Date of Termination or (Biii) two (2); provided, unless his compensation for the last completed calendar year before the Change of Control occurring on Control, over (b) the actuarial equivalent lump sum value of the Executive’s actual benefit (paid or preceding such termination also meets payable in the requirements of Section 409A(a)(2)(A)(vfuture), if any, under the Retirement Plan (determined without taking into account any early retirement subsidies) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period SERP as of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application Date of Section 409A(a)(1)(A) and (B)Termination;
(v) Subject the Company shall also provide to the Executive for one year after the Executive’s continued co-payment Date of premiums, continued participation Termination out placement services that are suitable for two (2) years in senior executive officers and reasonably acceptable to the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and;
(vi) Payments falling under Section 10(b)iv shallthe Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such Qualifying Termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement). Such payments shall be paid in a lump sum pursuant to such section, be paid made within ten five (105) business days after delivery of the Executive’s termination written request for payment accompanied with such evidence of employment. Provided, to fees and expenses incurred as the extent applicable under Company may reasonably require and
(vii) the payments provided for in this Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation 5(d) (other than Section 1.409A-1(b)(45(d)(iv), the payments and benefits payable to Executive under this Section 10(b5(d)(v)) shall be subject made not later than the fifth day following the Date of Termination; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Safe Harbor Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and Postponement shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the “Code”)) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 8(c)(iv1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i9(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv 11(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b11(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv9(c)(iv).
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by In the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence event of a Change in Control of Qualifying Termination, the Company and ending on Executive shall receive the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive withfollowing benefits:
(i) Executive’s Payment of all Accrued ObligationsObligations in a lump sum within thirty (30) days after the Date of Termination; provided, payable however, that any portion of the Accrued Obligations which consists of bonus, deferred compensation or incentive compensation shall be determined and paid in accordance with Section 8(a)(i);the terms of the relevant plan as applicable to the Executive,
(ii) Any unpaid A prorated annual cash incentive award earned with respect to bonus (based on the target bonus under the Company's Senior Management Incentive Plan or any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive successor plan for the fiscal year in which such the Executive's termination of employment occurs) through and including the effective date of the Executive's termination of employment and, in the case of the 2001 fiscal year only, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives special bonus for such fiscal year;,
(iii) Payment in a lump sum within thirty (30) days after the Date of Termination of a salary replacement amount equal to three hundred percent (300%) of the Executive's base salary as in effect prior to the termination,
(iv) A Payment in a lump sum severance payment in within thirty (30) days after the aggregate Date of Termination of a bonus replacement amount equal to three hundred percent (300%) of the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); providedPrior Bonus, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);and
(v) Subject to Executive’s continued co-payment Continuation, for a period of premiums, continued participation for two (2) years in after the Company’s medical Date of Termination, of all welfare benefits plan and senior executive perquisites on terms at least as favorable to the Executive as those which covers Executive and his eligible dependents upon would have been provided if the same terms and conditions (except Executive's employment had continued for that time pursuant to this Agreement, with the requirements cost of Executive’s continued employment) in effect for active employees of such benefits to be paid by the Company. In To the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by extent the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce is unable to provide comparable insurance for reasons other than cost, the period of Company may provide a lesser level or no coverage and count against Executive’s right compensate the Executive for the difference in coverage through a cash lump sum payment grossed up for taxes. This payment will be tied to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, the cost of an individual insurance policy if it were assumed to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)available.
Appears in 1 contract
Samples: Transitional Compensation Agreement (CDW Computer Centers Inc)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligations's base salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);
to the extent not theretofore paid or deferred, (iiB) Any unpaid a pro rata portion of Executive's annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive's Date of Termination occurs in an amount at least equal to (1) Executive's Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company's annual incentive plan for the fiscal year in which pro-rated annual cash incentive award shall be paid when awards are paid generally Executive's Date of Termination occurs and (C) any accrued vacation pay, in each case to senior executives for such year;the extent not theretofore paid; plus
(ivii) A lump within five (5) days following the Date of Termination, a lump-sum severance payment in the aggregate cash amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (Bi) two (2); provided, unless ) times Executive's highest annual rate of base salary during the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi12-monthly payroll installments over a month period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject immediately prior to Executive’s continued co-payment 's Date of premiumsTermination, continued participation for plus (ii) two (2) years times Executive's Bonus Amount.
(iii) in addition to the payments set forth in Sections 4 (a) (i) and (ii) as well as Section 5, any stock incentives (as defined in the stock incentive plans maintained by the Company’s medical benefits plan which covers ) that have been awarded to Executive and his eligible dependents under the terms of the stock incentive plans maintained by the Company shall fully vest upon the same occurrence of a Change in Control, as such term is defined in Section 1(d) with 50% substituted for 25 % in Section 1 (d) (ii) (whether or not a Qualifying Termination has occurred) and all other terms and conditions (except for the requirements of Executive’s continued employment) any such stock incentive award shall remain in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral not inconsistent with the provisions of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b4 (a) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv(iii).
Appears in 1 contract
Samples: Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);to the extent no theretofore paid or deferred, and (B) any accrued vacation pay, to the extent not theretofore paid; plus
(ii) Any unpaid on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Internal Revenue Code (“Code”)), a lump sum cash amount equal to a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination Executive’s Date of Termination occurs, the amount of which portion shall at least be based on target performance and equal to (A) Executive’s Bonus Amount, multiplied by (B) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (C) any amounts paid from the Company’s annual incentive plan for the fiscal year in which proExecutive’s Date of Termination occurs; plus
(iii) on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Code, a lump-rated sum cash amount equal to (A)three (3) times Executive’s highest annual cash incentive award shall be paid when awards are paid generally rate of base salary during the 12-month period immediately prior to senior executives for such year;Executive’s Date of Termination, plus (B) three (3) times Executive’s Bonus Amount.
(iv) A lump sum severance payment in addition to the payments set forth in Sections 4 (a)(i), (ii) and (iii) as well as Section 5, any stock incentives (as defined in the aggregate amount equal stock incentive plans maintained by the Company) that have been awarded to Executive under the product terms of (A) the sum stock incentive plans maintained by the Company shall fully vest upon the occurrence of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph as such term is defined in Section 1(d) with 50% substituted for 25% in Section 1(d)(ii) (ivwhether or not a Qualifying Termination has occurred) and all other terms and conditions of any such stock incentive award shall be paid to Executive remain in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, effect to the extent necessary to avoid not inconsistent with the application provisions of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv4(a)(iv).
Appears in 1 contract
Samples: Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by In the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence event of a Change in Control Qualifying Termination, subject to the terms and conditions of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Section 6 hereof, then the Company Employee shall pay or provide Executive withbe entitled to:
(a) the Accrued Benefits;
(b) cash payments (the “Severance Payments”) equal to (i) Executive’s Accrued Obligationstwelve (12) months' Base Salary, as in effect on the Date of Termination (payable subject to the terms of Section 6 of this Agreement), which shall be paid in substantially equal installments over the 12-month period, following the Date of Termination, consistent with the Company's payroll practices, with the first installment to be paid within 65 days after the Date of Termination and with any installments that would otherwise have been paid prior to such date accumulated and paid in a lump sum on the first date on which payments are made in accordance with the terms of this sentence; provided that (i) any monies Employee earns from any other work, whether as an employee or as an independent contractor, while Employee is receiving the Severance Payments shall reduce, on a dollar-for-dollar basis, the amount that the Company is obligated to pay Employee under this Section 8(a)(i3(b), and (ii) Employee shall provide written notice to the Company, within two (2) business days from Employee’s receipt of any monies Employee earns from any other work while Employee is receiving the Severance Payments by written notice to the Company detailing the date of receipt, gross and net amount, and source of such monies, by U.S. Mail and e-mail to Xxxxxxxxx Xxxxxxx, Chief Human Resources Officer, XPO Logistics, Five Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000; e-mail (e-mail redacted);
(iic) Any unpaid annual a cash incentive award earned with respect payment equal to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive prorated bonus for the fiscal year in which such termination occursperformance year, defined as the amount product of which shall be based on target performance (A) the Target Bonus and (B) a fraction, the numerator of which is the number of days elapsed during from January 1 in the performance year in which the Date of Termination occurs (or from the Effective Date, if the Date of Termination occurs in 2021) through the date Date of termination Termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivd) A lump sum severance payment in the aggregate amount equal to the product of extent Employee is eligible to elect to continue coverage under the Company’s group medical and dental benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v“COBRA”) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”)elects such benefits, the amount payable to Executive under this subparagraph (iv) Company shall be paid to Executive pay Employee's COBRA premiums for medical and dental coverage as in equal semi-monthly payroll installments over effect on the Date of Termination for a period of twenty-four six (246) monthsmonths from the Date of Termination. If, not however, Employee secures other employment at any time during the six (6) month period following his Date of Termination and becomes eligible for any medical and dental benefits through such other employment, the Company’s obligation to pay Employee’s COBRA premiums for any medical or dental benefits under this Section 3(d) shall cease as of the end of the month in a lump sum, which Employee becomes eligible for any medical and dental benefits through such other employer. Employee shall provide written notice to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiumsCompany, continued participation for within two (2) years in business days from Employee’s eligibility for any medical and dental benefits through such other employer, by U.S. Mail and e-mail to Xxxxxxxxx Xxxxxxx, Chief Human Resources Officer, XPO Logistics, Five Xxxxxxxx Xxxx, Xxxxxxxxx, XX 00000, e-mail (e-mail redacted). Any continuation of Employee’s coverage under the Company’s group medical and dental benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination six (6) month period following his Date of employment. Provided, to Termination or after the extent applicable under Section 409A as a “deferral of compensation,” month in which Employee becomes eligible for medical and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and dental benefits payable to Executive under this Section 10(b) through such other employer shall be subject to at the Safe Harbor and Postponement provided at Section 8(c)(iv)Employee’s sole expense.
Appears in 1 contract
Samples: Change in Control and Severance Agreement (XPO Logistics, Inc.)
Qualifying Termination. If, If prior to Executive’s attainment of age 65, 65 Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) ), or if Executive’s employment is voluntarily terminated by Executive for Good Reason, in either case only in connection with the occurrence of a Change in Control or during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of the date of the Change in Control (the “Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2), to be paid within ten (10) business days after Executive’s termination from employment; provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in ControlControl ”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the All of Executive’s unvested Long-Term Awards shall become immediately fully vested. All then-unexercised stock options shall be exercisable for the lesser of one year following the date of termination or the exercise period stated in the award agreement. All then-unexercised stock-settled or other stock appreciation rights shall be exercisable for the lesser of employmentone year following the date of termination or the exercise period stated in the award agreement to the extent permissible under the applicable award agreement and plan. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b10(c) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, The Company may also terminate the Executive’s employment is involuntarily terminated by with the Company at any time without Cause, and the Executive may terminate the Executive’s employment with the Company at any time for Good Reason (as defined in Section 3(f)(i)(B)) (a termination without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during Reason is a “Qualifying Termination”).
(i) On a Qualifying Termination that is not within the one-year period commencing on the occurrence of following a Change in Control of (as defined in Section 3(f)(i)(A)), the Executive shall be entitled to receive from the Company and ending on (A) the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable Other Benefits in accordance with Section 8(a)(i3(a);
; (iiB) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the an aggregate amount (the “Severance Amount”) equal to the product of (A) one times the sum of (1) Executive’s highest of the Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by an amount equal to 100% of the Annual Target Bonus; and (BC) two a bonus for the year of termination in accordance with Section 2(b) and (2D) immediate vesting of any service-based vesting conditions applicable to long-term awards previously granted (including awards granted under the Equity Incentive Plan); provided, unless the Change however, that any such awards shall remain subject to achievement of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”)performance-vesting conditions, the amount payable to Executive under this subparagraph (iv) if any. The Severance Amount shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to and the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment incentive awards that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection vest shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid or settled in a lump sum pursuant to such sectionsum, be paid within ten (10) business on the first regularly scheduled payroll date that occurs at least 30 days after the Executive’s termination of employment (or, for awards subject to achievement of performance-vesting conditions, within 30 days after the committee certifies the level of achievement of the performance conditions), subject to the Executive’s compliance with the requirement to deliver the release contemplated pursuant to Section 4(a); provided that if the period in which the release is subject to consideration and revocation spans two calendar years, then such amounts shall be paid or settled in the later year.
(ii) On a Qualifying Termination that is not within the one year period following a Change in Control, the Company shall also provide to the Executive, during the one year period following the Executive’s date of termination, medical, dental, life and disability insurance coverage for the Executive and the members of the Executive’s immediate family which is not less favorable to the Executive than the group medical, dental, life and disability insurance coverage carried by the Company for the Executive and the members of the Executive’s family immediately prior to such termination of employment. Provided, subject to the Executive’s compliance with the requirement to deliver the release contemplated pursuant to Section 4(a); provided, however, that the obligations set forth in this sentence shall terminate to the extent applicable under the Executive obtains comparable medical, dental, life or disability insurance coverage from any other employer during such period, but the Executive shall not have any obligation to seek or accept employment during such period, whether or not any such employment would provide comparable medical and dental insurance coverage; and provided further, however, that the Executive shall be obligated to pay an amount equal to the active employee contribution, if any, for each such coverage. Notwithstanding the foregoing but (for the avoidance of doubt) without limiting the provision of coverage provided in this Section 409A 3(b)(ii) above, if at any time the Company determines that its partial subsidy of the Executive’s premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as a amended (the “deferral Code”) or any other Code section, law or regulation of compensation,” similar effect (including but not limited to the 2010 Patient Protection and not Affordable Care Act, as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing the payments and benefits payable subsidized premiums described above, the Company shall instead pay a fully taxable monthly cash payment in an amount such that, after payment by the Executive of all taxes on such payment, the Executive retains an amount equal to Executive under this Section 10(bthe Company’s portion of the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of the one year period.
(iii) For the avoidance of doubt, the payment of the Severance Amount shall be subject to in lieu of any amounts payable under the Safe Harbor Company’s severance policy (as then in effect) and Postponement provided at Section 8(c)(iv)the Executive hereby waives any and all rights thereunder.
Appears in 1 contract
Samples: Employment Agreement (Kaleyra, Inc.)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);
to the extent not theretofore paid or deferred, (iiB) Any unpaid a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive’s Date of Termination occurs in an amount at least equal to (1) Executive’s Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company’s annual incentive plan for the fiscal year in which proExecutive’s Date of Termination occurs and (C) any accrued vacation pay, in each case to the extent not theretofore paid; plus
(ii) within five (5) days following the Date of Termination, a lump-rated sum cash amount equal to (i) three (3) times Executive’s highest annual cash rate of base salary during the 12-month period immediately prior to Executive’s Date of Termination, plus (ii) three (3) times Executive’s Bonus Amount.
(iii) in addition to the payments set forth in Sections 4 (a) (i) and (ii) as well as Section 5, any stock incentives (as defined in the stock incentive plans maintained by the Company) that have been awarded to Executive under the terms of the stock incentive plans maintained by the Company shall fully vest upon the occurrence of a Change in Control, as such term is defined in Section 1(d) with 50% substituted for 25 % in Section 1 (d) (ii) (whether or not a Qualifying Termination has occurred) and all other terms and conditions of any such stock incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment remain in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, effect to the extent necessary to avoid not inconsistent with the application provisions of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b4 (a) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv(iii).
Appears in 1 contract
Samples: Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. IfIf during the Employment Period the Executive suffers a “separation from service” (as defined in Treasury Regulation §1.409A-1(h)) because his employment is terminated either (1) by the Corporation other than for Cause or, prior to Disability or by reason of the Executive’s attainment of age 65, Executive’s employment is involuntarily terminated death or (2) by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good ReasonReason (each, in either case only during the period commencing a “Qualifying Termination”), then, on the occurrence date that is six months after the Date of a Change in Control Termination (or, if earlier than the end of such six-month period, within 30 days following the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”Executive’s death), then the Company shall Corporation will pay or provide to the Executive with(except as provided below) as compensation for services rendered to the Corporation:
(1) A lump-sum cash amount equal to the sum of:
(i) the Executive’s Accrued Obligationsunpaid Base Salary through the Date of Termination (at the rate in effect on the Date of Termination or, payable if higher, at the highest rate in accordance with Section 8(a)(ieffect at any time within the 90-day period preceding the Effective Date);; plus
(ii) Any unpaid annual cash that portion of the target Annual Bonus under the Corporation’s incentive award earned with respect to compensation plans or any fiscal year ending on similar plans or preceding programs then in effect determined by multiplying the date target Annual Bonus by the fraction arrived at by dividing the number of termination, payable when awards are paid generally to senior executives full weeks for such year;which the Executive was employed during the Fiscal Year in which his Date of Termination occurred by 52; plus
(iii) A proa pro rata portion of the target payments under the Corporation’s long-rated annual cash incentive for term performance bonus (“LTI”) plans, or any similar plans or programs then in effect, adopted with respect to the fiscal year in which such termination occurscurrent Fiscal Year and with respect to each of the immediately two preceding Fiscal Years. In each case, the amount pro rata portion of which the LTI payment shall be based on target performance and a fraction, the numerator of which is determined by dividing the number of days elapsed full weeks for which the Executive was employed since the beginning of the Fiscal Year with respect to which the relevant LTI plan was adopted to his Date of Termination by 156; plus (iv) any unpaid vacation under the Corporation’s vacation policy in effect at the Date of Termination (or, if more favorable to the Executive, under any vacation policy of the Corporation in effect at any time within the 90-day period preceding the Effective Date).
(2) A lump-sum cash amount equal to the sum of:
(i) threetwo times the Executive’s highest annual rate of Base Salary in effect during the performance year through 12-month period prior to the date Date of termination and Termination; plus
(ii) threetwo times the denominator Executive’s target annual bonus in effect for the Fiscal Year in which the Change of Control occurs; plus (iii) three times the target LTI payment for the Fiscal Year in which is 365, which pro-rated annual cash incentive award the Change of Control occurs. Any amount paid to the Executive pursuant to this Section 7(d)(2) shall be paid when awards are paid generally offset by any other amount of severance relating to senior executives for such year;salary or bonus continuation to be received by the Executive upon termination of the Executive’s employment under any other severance plan, policy, employment agreement or arrangement of the Corporation.
(iv3) A lump sum severance payment in the aggregate cash amount equal to the product excess of (i) the actuarial present value as of the Date of Termination of the benefits that would be accrued under the FedEx Corporation Employees’ Pension Plan and the FedEx Corporation Retirement Parity Pension Plan determined by assuming that (A) the sum Executive has earned an additional 36 months of (1) the Executive’s highest annual rate of Base Salary in effect during the Protection Period plus (2) his annual 12-month period prior to the Date of Termination and target annual cash incentive award multiplied by (B) two (2); provided, unless bonus in effect for the Fiscal Year in which the Change of Control occurring on or preceding occurs and (B) the Executive is credited with an additional 36 months of age and service under such termination also meets plans, over (ii) the requirements actuarial present value of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) the actual benefits accrued by the Executive as of the Date of Termination under such plans without the assumptions set forth in clauses (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(AA) and (B) of this Section (7)(d)(3);.
(v4) Subject A lump sum cash amount equal to Executivethe Corporation’s continued co-payment of premiums, continued participation for two cost (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees determined as of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation Date of Termination) of 36 months of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).under
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A proPro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such yearRated Bonus;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest then Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (constitutes a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive (and his eligible dependents dependents) upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the All of Executive’s unvested stock option, restricted stock unit and other long-term incentive equity awards (including any Initial Term Annual Awards) shall become immediately fully vested, and such stock option awards shall be exercisable for the lesser of one (1) year following the date of termination or the unexpired stated term of employmentthe grant. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b10(c) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, The Company may also terminate the Executive’s employment is involuntarily terminated by with the Company at any time without Cause, and the Executive may terminate the Executive’s employment with the Company at any time for Good Reason (as defined in Section 3(f)(i)(B)) (a termination without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during Reason is a “Qualifying Termination”).
(i) On a Qualifying Termination that is not within the two-year period commencing on the occurrence of following a Change in Control of (as defined in Section 3(f)(i)(A)), the Executive shall be entitled to receive from the Company and ending on (A) the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable Other Benefits in accordance with Section 8(a)(i3(a);
; (iiB) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the an aggregate amount (the “Severance Amount”) equal to the product of (A) two times the sum of (1) Executive’s highest the then-applicable Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by an amount equal to the then-applicable Annual Target Bonus; (BC) two a bonus for the year of termination in accordance with Section 3(b); and (2D) immediate vesting of any service-based vesting conditions applicable to long-term awards previously granted (including awards granted under the Equity Incentive Plan); provided, unless the Change however, that any such awards shall remain subject to achievement of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”)performance-vesting conditions, the amount payable to Executive under this subparagraph (iv) if any. The Severance Amount shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to and the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment incentive awards that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection vest shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid or settled in a lump sum pursuant to such sectionsum, be paid within ten (10) business on the first regularly scheduled payroll date that occurs at least 30 days after the Executive’s termination of employment (or, for awards subject to achievement of performance-vesting conditions, within 30 days after the committee certifies the level of achievement of the performance conditions), subject to the Executive’s compliance with the requirement to deliver the release contemplated pursuant to Section 4(a); provided that if the period in which the release is subject to consideration and revocation spans two calendar years, then such amounts shall be paid or settled in the later year.
(ii) On a Qualifying Termination that is not within the two-year period following a Change in Control, the Company shall also provide to the Executive, during the two year period following the Executive’s date of termination, medical, dental, life and disability insurance coverage for the Executive and the members of the Executive’s family which is not less favorable to the Executive than the group medical, dental, life and disability insurance coverage carried by the Company for the Executive and the members of the Executive’s family immediately prior to such termination of employment. Provided, subject to the Executive’s compliance with the requirement to deliver the release contemplated pursuant to Section 4(a); provided, however, that the obligations set forth in this sentence shall terminate to the extent applicable under the Executive obtains comparable medical, dental, life or disability insurance coverage from any other employer during such period, but the Executive shall not have any obligation to seek or accept employment during such period, whether or not any such employment would provide comparable medical and dental insurance coverage; and provided further, however, that the Executive shall be obligated to pay an amount equal to the active employee contribution, if any, for each such coverage. Notwithstanding the foregoing but (for the avoidance of doubt) without limiting the provision of coverage provided in this Section 409A 3(b)(ii) above, if at any time the Company determines that its partial subsidy of the Executive’s premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as a amended (the “deferral Code”) or any other Code section, law or regulation of compensation,” similar effect (including but not limited to the 2010 Patient Protection and not Affordable Care Act, as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing the payments and benefits payable subsidized premiums described above, the Company shall instead pay a fully taxable monthly cash payment in an amount such that, after payment by the Executive of all taxes on such payment, the Executive retains an amount equal to Executive under this Section 10(bthe Company’s portion of the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of the two year period.
(iii) For the avoidance of doubt, the payment of the Severance Amount shall be subject to in lieu of any amounts payable under the Safe Harbor Company’s severance policy (as then in effect) and Postponement provided at Section 8(c)(iv)the Executive hereby waives any and all rights thereunder.
Appears in 1 contract
Samples: Transition and Employment Agreement (Kaleyra, Inc.)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company Belden and ending on the second anniversary of the date of the Change in Control (“Protection Period”"), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 1 contract
Qualifying Termination. If, If prior to Executive’s 's attainment of age 65, 65 Executive’s 's employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) ), or if Executive's employment is voluntarily terminated by Executive for Good Reason, in either case only in connection with the occurrence of a Change in Control or during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of the date of the Change in Control (“Protection Period”the "PROTECTION PERIOD"), then the Company shall pay or provide Executive with:
(i) Executive’s 's Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s 's highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s 's continued co-payment of premiums, continued participation for two (2) years in the Company’s 's medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s 's continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s 's right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to All of Executive's unvested Long-Term Awards shall become immediately fully vested. All then-unexercised stock options shall be paid exercisable for the lesser of one year following the date of termination or the exercise period stated in a lump sum pursuant to such section, the award agreement. All then-unexercised stock-settled or other stock appreciation rights shall be paid within ten (10) business days after exercisable for the Executive’s lesser of one year following the date of termination of employment. Provided, or the exercise period stated in the award agreement to the extent permissible under the applicable under Section 409A as a “deferral of compensation,” award agreement and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)plan.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s A "Qualifying Termination" occurs if (i) First Federal terminates the Employee's employment is involuntarily terminated by the Company without Cause (and for any reason other than due to his Disabilityfor Cause, disability, or death, or (ii) or is voluntarily terminated by Executive the Employee terminates employment for Good Reason, in either case only during the period commencing on the occurrence of . If a Qualifying Termination occurs prior to or more than 24 months following a Change in Control (defined in paragraph (e) below) that occurs during the term of this Agreement, and contingent on receipt of an executed and unrevoked release of claims as described in Section 3(j) (the "Release"), the Company and ending First Federal jointly must: (A) pay a lump sum to the Employee within 7 days commencing on the second anniversary of effective date of the Change executed and unrevoked Release: (1) the Employee's Annual Base Salary at the rate in Control effect immediately before the Date of Termination, and (“Protection Period”), then 2) the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash pro rata portion of any incentive award or bonus earned for the year in which the Date of Termination occurs (with respect to any fiscal year ending proration determined based on or preceding the date number of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for months in the fiscal year in which such termination occursthe Employee is employed with the First Federal), the amount of which shall which, if any, is to be based on target performance determined by the First Federal Board of Directors in its sole discretion, and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless pay to the Change Employee within 7 days of Control occurring on or preceding such termination also meets the requirements effective date of Section 409A(a)(2)(A)(v) the executed and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (unrevoked release a “409A Change lump sum in Control”), the amount payable of $[___], which is equivalent to Executive the cost of coverage under this subparagraph Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (iv"COBRA") shall be paid to Executive in equal semi-monthly payroll installments over for the Employee and eligible dependents for a period of twenty-four (24) months12 months at the same level of benefits that the Employee had elected on the Date of Termination, provided the Employee and/or eligible dependents timely elect continuation coverage under COBRA within the time period prescribed pursuant to COBRA, and otherwise qualify for continued coverage. A Qualifying Termination does not in a lump suminclude termination for Cause, to the extent necessary to avoid the application termination because of Section 409A(a)(1)(Adeath or disability under Sections 3(f) and (B);
(v3(g) Subject to Executive’s continued co-payment of premiumsthis Agreement, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar voluntary termination, or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)retirement.
Appears in 1 contract
Qualifying Termination. If, prior to If the Executive’s attainment of age 65, Executive’s 's employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only a Qualifying Termination during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company Executive shall pay or provide Executive withbe entitled to the following benefits:
(i) if the Executive’s Accrued Obligations's Qualifying Termination occurs in a calendar year subsequent to the year in which the Change in Control occurred, payable a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's target or base incentive bonus possible under the Annual Bonus Program for the year in accordance with Section 8(a)(i)which termination occurs;
(ii) Any unpaid annual a lump sum cash payment equal to all outstanding long term incentive award earned with respect awards made to any fiscal year ending on or preceding the date Executive under the long term incentive programs of terminationthe Company (the "LTIP"), payable when awards are paid generally to senior executives for such yearassuming attainment of the applicable maximum performance targets;
(iii) A pro-rated annual cash incentive in lieu of any further salary payments to the Executive for periods subsequent to the fiscal year in which such termination occursDate of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to three times the sum of (A) the higher of the Executive's annual base salary in effect immediately before the event or circumstance upon which shall be the Notice of Termination is based on target performance or such salary in effect immediately before the Change in Control and a fraction, (B) the numerator higher of (x) the highest award made to the Executive pursuant to the Company's annual incentive plan for each of the three measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based or (y) such highest award in respect of the number of days elapsed during three measuring periods completed immediately before the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such yearChange in Control;
(iv) A a lump sum severance payment amount (utilizing actuarial assumptions for lump sum payments in effect under the aggregate amount Company's qualified defined benefit retirement plan (the "Retirement Plan") immediately prior to the Date of Termination) equal to the product excess of (Aa) the actuarial equivalent lump sum value of the benefit under the Retirement Plan (determined without taking into account any early retirement subsidies) and the actuarial equivalent lump sum value of the benefit under any excess or supplemental retirement plan in which the Executive participates (together, the "SERP"), that the Executive would receive if the Executive's employment continued for three years after the Date of Termination, assuming for this purpose that all accrued benefits are fully vested, the Executive is three years older, such three years of additional service is counted as credited service as an officer under the SERP and assuming that the Executive's compensation in each of the calendar years fully or partially included because of the additional three years is the greatest of (1i) Executive’s highest Base Salary during the Protection Period plus compensation in the year of termination annualized pursuant to the assumptions used for the Retirement Plan, or (2ii) his annual target annual cash incentive award multiplied by compensation for the last completed calendar year before the Date of Termination or (Biii) two (2); provided, unless his compensation for the last completed calendar year before the Change of Control occurring on Control, over (b) the actuarial equivalent lump sum value of the Executive's actual benefit (paid or preceding such termination also meets payable in the requirements of Section 409A(a)(2)(A)(vfuture), if any, under the Retirement Plan (determined without taking into account any early retirement subsidies) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period SERP as of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application Date of Section 409A(a)(1)(A) and (B)Termination;
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation also provide to the Executive for one year after the Executive's Date of health benefits under this subsection shall reduce Termination out placement services that are suitable for senior executive officers and reasonably acceptable to the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and;
(vi) Payments falling under Section 10(b)iv shallthe Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such Qualifying Termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement). Such payments shall be paid in a lump sum pursuant to such section, be paid made within ten five (105) business days after delivery of the Executive’s termination 's written request for payment accompanied with such evidence of employment. Provided, to fees and expenses incurred as the extent applicable under Company may reasonably require and
(vii) the payments provided for in this Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation 5(d) (other than Section 1.409A-1(b)(45(d)(iv), the payments and benefits payable to Executive under this Section 10(b5(d)(v)) shall be subject made not later than the fifth day following the Date of Termination; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Safe Harbor Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and Postponement shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code")) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 8(c)(iv1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his her Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his her annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his her eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 1 contract
Qualifying Termination. If, If prior to Executive’s attainment of age 65, 65 Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) ), or if Executive’s employment is voluntarily terminated by Executive for Good Reason, in either case only in connection with the occurrence of a Change in Control or during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of the date of the Change in Control (the “Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling All of Executive’s unvested Long-Term Awards (except for any performance shares or PSUs (other than the 2007 PSUs which are covered above under Section 10(b)iv shall, if 10(b)) where termination of Executive’s employment occurs prior to a Performance Determination Date) shall become immediately fully vested. All then-unexercised stock-settled or other stock appreciation rights shall be paid exercisable for the lesser of one year following the date of termination or the exercise period stated in a lump sum pursuant the award agreement to such section, be paid within ten the extent permissible under the applicable award agreement and plan. With respect to any PSUs (10other than 2007 PSUs) business days after where the Executive’s termination of employment. Provided, employment is terminated prior to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4)Performance Determination Date, the payments and benefits payable to Executive under this Section 10(b) consequence of such termination shall be subject to governed by the Safe Harbor and Postponement provided at Section 8(c)(iv)award agreement.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, If the Executive’s employment is involuntarily terminated terminates as a result of a termination of employment by the Company without Cause (and other than due to his Disabilitya “Qualifying Termination”) or is voluntarily terminated by Executive for Good Reason, in either case only during including following the period commencing on the occurrence of a Change in Control Company’s non-renewal of the Company Employment Period under Sections 1 and ending on the second anniversary of date of the Change in Control (“Protection Period”4(a)(i), then the Company shall will pay or provide to the Executive, in addition to the Accrued Obligations, the following severance benefits (the “Severance Benefits”), provided that the Executive withdoes not violate any of the restrictions referenced in Section 5 of this Agreement:
(i) If the Executive’s Accrued ObligationsQualifying Termination occurs outside of the Protection Period (defined below):
(A) Continued Base Salary for a period of twelve (12) months following the Termination Date, payable in equal installments in accordance with Section 8(a)(i)the Company’s normal payroll practices;
(iiB) Any Payment of any unpaid annual cash incentive award earned with Annual Bonus in respect to of any completed fiscal year ending on or preceding that has ended prior to the date of such termination, payable when awards which amount shall be paid at such time annual bonuses are paid generally to other senior executives for such year;
of the Company, but in no event later than the date that is two and one-half (iii2½) A pro-rated annual cash incentive for months following the last day of the fiscal year in which the Termination Date occurred; and
(C) Subject to the specific terms and conditions of the equity awards to be issued to the Executive under the Equity Plan (including, as applicable, the 2024 Equity Grant), vesting of the unvested portion thereof (including, as applicable the 2024 Equity Grant) shall be accelerated in connection with the Executive’s Qualifying Termination in accordance with such termination occursterms and conditions set forth therein; provided that, with respect to any outstanding equity awards that were issued by the Company to the Executive prior to the 2024 calendar year (“Legacy Awards”), vesting of the unvested portion of the Legacy Awards shall be accelerated in full in connection with the Executive’s Qualifying Termination.
(ii) If the Executive’s Qualifying Termination occurs during the Protection Period, and without duplication of any of the Severance Benefits provided to the Executive under Section 4(d)(i):
(A) A lump-sum payment equal to the amount of which shall be based on target performance the Executive’s annual Base Salary (and a fractionfor the avoidance of doubt, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be less any amounts previously paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2Executive pursuant to Section 4(d)(i)(A); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a the “409A Change in ControlEnhanced Severance Amount”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(vB) Subject Payment of any unpaid portion of any additional retention benefit, transaction benefit or similar benefit arrangement that is offered or provided to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce or its successor in connection with any “Change in Control” (as defined in the period of coverage and count against Executive’s right Equity Plan) to healthcare continuation benefits under COBRAwhich the Protection Period relates; and
(viC) Payments falling under Section 10(b)iv shallPayment of any unpaid Annual Bonus in respect of any completed fiscal year that has ended prior to the date of such termination, if which amount shall be paid at such time annual bonuses are paid to other senior executives of the Company, but in no event later than the date that is two and one-half (2½) months following the last day of the fiscal year in which the Termination Date occurred; and
(D) subject to the specific terms and conditions of the equity awards to be paid issued to the Executive under the Equity Plan (including, as applicable, the 2024 Equity Grant), vesting of the unvested portion thereof (including, as applicable the 2024 Equity Grant) shall be accelerated in a lump sum pursuant to such section, be paid within ten (10) business days after connection with the Executive’s termination Qualifying Termination in accordance with such terms and conditions set forth therein; provided that, with respect to any Legacy Awards, vesting of employment. Provided, to the extent applicable under Section 409A as a “deferral unvested portion of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) Legacy Awards shall be subject to accelerated in full in connection with the Safe Harbor and Postponement provided at Section 8(c)(iv)Executive’s Qualifying Termination.
Appears in 1 contract
Qualifying Termination. If, If prior to Executive’s attainment of age 65, 65 Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) ), or if Executive’s employment is voluntarily terminated by Executive for Good Reason, in either case only in connection with the occurrence of a Change in Control or during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of the date of the Change in Control (the “Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2), to be paid within ten (10) business days after Executive’s termination from employment; provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling All of Executive’s unvested Long-Term Awards (except for any performance shares or PSUs (other than the 2007 PSUs which are covered above under Section 10(b)iv shall, if 10(b)) where termination of Executive’s employment occurs prior to a Performance Determination Date) shall become immediately fully vested. All then-unexercised stock-settled or other stock appreciation rights shall be paid exercisable for the lesser of one year following the date of termination or the exercise period stated in a lump sum pursuant the award agreement to such section, be paid within ten the extent permissible under the applicable award agreement and plan. With respect to any PSUs (10other than 2007 PSUs) business days after where the Executive’s employment is terminated prior to a Performance Determination Date, the consequence of such termination of employmentshall be governed by the award agreement. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b10(c) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).
Appears in 1 contract
Qualifying Termination. IfExcept as applies under paragraph 4(b), if Executive’s employment by the Company is terminated without Cause or by Executive pursuant to a Constructive Termination, then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for any fiscal year of the Company which ended prior to the Termination Date, all earned but unused Vacation as of the Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Accrued Obligations”), and subject to Executive’s attainment of age 65continued compliance with paragraphs 6, Executive’s employment is involuntarily terminated by the Company without Cause 7, 8 and 9 hereof, (and other than due B) an amount equal to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control one times (“Protection Period”), then the Company shall pay or provide Executive with:
(i1X) Executive’s Accrued ObligationsBase Salary in effect on the Termination Date, payable in equal monthly installments, in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending the Company’s normal payroll practices in effect on or preceding the date of terminationTermination Date, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurstwelve (12) month period following the Termination Date, (C) an amount (the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro“Pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivRata Amount”) A lump sum severance payment in the aggregate amount equal to the product of (Ap) the sum percentage of the days in the applicable calendar year that Executive is employed by the Company and (1q) Executive’s highest Base Salary annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(c) hereof, (E) if the Executive and/or his dependents elect continuation coverage under COBRA, payment by the Company of the COBRA premiums for the Executive and/or his dependents in the same amount paid by the Company prior to the Termination Date during the Protection Period plus period beginning on the Termination Date and ending on the first to occur of (2xx) his annual target annual cash incentive award multiplied by the date twelve (B12) two months after the Termination Date and (2); providedyy) the first day Executive becomes eligible for similar benefits under another employer’s plans, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v(F) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid allowed under the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiumsapplicable plans, continued participation for two (2) years in the Company’s medical life, long-term disability, and group accident plans beginning on the Termination Date and ending on the first to occur of (xx) the date twelve (12) months after the Termination Date and (yy) the first day Executive becomes eligible for similar benefits plan which covers Executive under another employer’s plans, and his eligible dependents upon (G) outplacement services provided by a nationally-recognized outplacement firm, such services to be commensurate with the same terms and conditions (except for the requirements of services commonly provided to a person in a position comparable to Executive’s continued employment) in effect for active employees of position with the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shallsubject, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s 's attainment of age 65, Executive’s 's employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”"PROTECTION PERIOD"), then the Company shall pay or provide Executive with:
(i) Executive’s 's Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occurs, the amount of which shall be based on target actual performance under the applicable bonus plan and a fraction, the fraction the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award bonus shall be paid when awards bonuses are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest 's then Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s 's continued co-payment of premiums, continued participation for two (2) years in the Company’s 's medical benefits plan which covers Executive (and his eligible dependents dependents) upon the same terms and conditions (except for the requirements of Executive’s 's continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s 's right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shallAll of Executive's unvested stock option, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” restricted stock unit and not as a “shortother long-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(bincentive equity awards (including any Initial Term Annual Awards) shall become immediately fully vested, and such stock option awards shall be subject to exercisable for the Safe Harbor and Postponement provided at Section 8(c)(iv)lesser of one year following the date of termination or the unexpired stated term of the grant.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);to the extent no theretofore paid or deferred, and (B) any accrued vacation pay, to the extent not theretofore paid; plus
(ii) Any unpaid on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Internal Revenue Code (“Code”)), a lump sum cash amount equal to a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination Executive’s Date of Termination occurs, the amount of which portion shall at least be based on target performance and equal to (A) Executive’s Bonus Amount, multiplied by (B) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (C) any amounts paid from the Company’s annual incentive plan for the fiscal year in which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;Executive’s Date of Termination occurs; plus
(iviii) A lump on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Code, a lump-sum severance payment in the aggregate cash amount equal to the product of (A) the sum of two (12) times Executive’s highest Base Salary annual rate of base salary during the Protection Period 12-month period immediately prior to Executive’s Date of Termination, plus (2) his annual target annual cash incentive award multiplied by (B) two (2) times Executive’s Bonus Amount.
(iv) in addition to the payments set forth in Sections 4 (a)(i); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v(ii) and Treasury Regulation (iii) as well as Section 1.409A-3(i)(55, any stock incentives (as defined in the stock incentive plans maintained by the Company) (or any successor provision) thereunder (that have been awarded to Executive under the terms of the stock incentive plans maintained by the Company shall fully vest upon the occurrence of a “409A Change in Control”, as such term is defined in Section 1(d) with 50% substituted for 25% in Section 1(d)(ii) (whether or not a Qualifying Termination has occurred) and all other terms and conditions of any such stock incentive award shall remain in effect to the extent not inconsistent with the provisions of this Section 4(a)(iv), . By amending the amount payable first sentence of Section 4(b) to Executive add the word “term” before the phrase “life insurance benefits” where such phrase appears in such sentence and by amending Section 4(b) to add the following at the end of such section: Any medical or dental coverage provided under this subparagraph (ivSection 4(b) shall be paid in addition to any rights Executive in equal semi-monthly payroll installments over a period has under part 6 of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application Title 1 of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)ERISA.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);to the extent no theretofore paid or deferred, and (B) any accrued vacation pay, to the extent not theretofore paid; plus
(ii) Any unpaid on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Internal Revenue Code (“Code”)), a lump sum cash amount equal to a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination Executive’s Date of Termination occurs, the amount of which portion shall at least be based on target performance and equal to (A) Executive’s Bonus Amount, multiplied by (B) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (C) any amounts paid from the Company’s annual incentive plan for the fiscal year in which proExecutive’s Date of Termination occurs; plus
(iii) on the first business day which is six (6) months and one (1) day after Executive separates from service (within the meaning of Section 409A of the Code, a lump-rated sum cash amount equal to (A) three (3) times Executive’s highest annual cash incentive award shall be paid when awards are paid generally rate of base salary during the 12-month period immediately prior to senior executives for such year;Executive’s Date of Termination, plus (B) three (3) times Executive’s Bonus Amount.
(iv) A lump sum severance payment in addition to the payments set forth in Sections 4 (a)(i), (ii) and (iii) as well as Section 5, any stock incentives (as defined in the aggregate amount equal stock incentive plans maintained by the Company) that have been awarded to Executive under the product terms of (A) the sum stock incentive plans maintained by the Company shall fully vest upon the occurrence of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”, as such term is defined in Section 1(d) with 50% substituted for 25% in Section 1(d)(ii) (whether or not a Qualifying Termination has occurred) and all other terms and conditions of any such stock incentive award shall remain in effect to the extent not inconsistent with the provisions of this Section 4(a)(iv), . By amending the amount payable first sentence of Section 4(b) to Executive add the word “term” before the phrase “life insurance benefits” where such phrase appears in such sentence and by amending Section 4(b) to add the following at the end of such section: Any medical or dental coverage provided under this subparagraph (ivSection 4(b) shall be paid in addition to any rights Executive in equal semi-monthly payroll installments over a period has under part 6 of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application Title 1 of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)ERISA.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. IfExcept as applies under paragraph 4(b), if Executive’s employment by the Company is terminated without Cause (as herein defined) or by Executive pursuant to a Constructive Termination (as herein defined), then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for any fiscal year of the Company which ended prior to the Termination Date, all earned but unused Vacation as of the Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Accrued Obligations”), and subject to Executive’s attainment of age 65continued compliance with paragraphs 6, Executive’s employment is involuntarily terminated by the Company without Cause 7, 8, 9 and 10 hereof, (and other than due B) an amount equal to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control one times (“Protection Period”), then the Company shall pay or provide Executive with:
(i1X) Executive’s Accrued ObligationsBase Salary in effect on the Termination Date, payable in equal monthly installments, in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending the Company’s normal payroll practices in effect on or preceding the date of terminationTermination Date, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurstwelve (12) month period following the Termination Date, (C) an amount (the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro“Pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivRata Amount”) A lump sum severance payment in the aggregate amount equal to the product of (Ap) the sum percentage of the days in the applicable calendar year that Executive is employed by the Company and (1q) Executive’s highest Base Salary during the Protection Period plus annual Bonus for such full year if Executive’s employment had not terminated (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or without regard to any successor provision) thereunder (a “409A Change in Control”subjective performance goals), payable in accordance with paragraph 3(c) hereof, (D) the amount Signing Bonus, payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sumsum on the sixtieth (60th) day following termination, if not previously paid, (E) if the Executive and/or his dependents elect continuation coverage under COBRA, payment by the Company of the COBRA premiums for the Executive and/or his dependents in the same amount paid by the Company prior to the Termination Date during the period beginning on the Termination Date and ending on the first to occur of (xx) the date twelve (12) months after the Termination Date and (yy) the first day Executive becomes eligible for similar benefits under another employer’s plans, (F) to the extent necessary to avoid allowed under the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiumsapplicable plans, continued participation for two (2) years in the Company’s medical life, long-term disability, and group accident plans beginning on the Termination Date and ending on the first to occur of (xx) the date twelve (12) months after the Termination Date and (yy) the first day Executive becomes eligible for similar benefits plan which covers Executive under another employer’s plans, and his eligible dependents upon (G) outplacement services provided by a nationally-recognized outplacement firm, such services to be commensurate with the same terms and conditions (except for the requirements of services commonly provided to a person in a position comparable to Executive’s continued employment) in effect for active employees of position with the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shallsubject, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 1 contract
Qualifying Termination. IfUpon a Qualifying Termination that does not occur during a CIC Protection Period, prior subject to Executive’s attainment execution and non-revocation of age 65a release of claims, Executive’s employment is involuntarily terminated in the form provided by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection PeriodRelease”), then within the Company time period specified therein and Executive’s continued compliance with the provisions of the Confidentiality Agreement and Sections 4, 5, 6 and 8(k) Executive shall pay or provide Executive withbe entitled to receive:
(i) if such Qualifying Termination occurs on or prior to December 31, 2023, aggregate severance payments in an amount equal to the sum of (A) 150% of Executive’s Accrued Obligationsannual base salary at the rate in effect on the Termination Date (and prior to any reduction that constitutes Good Reason) and (B) Executive’s target annual bonus for the year in which the Termination Date occurs, payable in equal installments in accordance with Section 8(a)(i)the Company’s normal payroll practices for the 18 months following the date the Release becomes effective and irrevocable; provided, that if the period during which the Release could become effective and irrevocable spans two calendar years, payments of such installments shall not commence until the first normal payroll date in the second calendar year;
(ii) Any unpaid if such Qualifying Termination occurs following December 31, 2023, aggregate severance payments in an amount equal to the sum of (A) Executive’s annual cash incentive award earned with respect base salary at the rate in effect on the Termination Date (and prior to any fiscal reduction that constitutes Good Reason) and (B) Executive’s target annual bonus for the year ending on or preceding in which the Termination Date occurs, payable in equal installments in accordance with the Company’s normal payroll practices for the 12 months following the date the Release becomes effective and irrevocable; provided, that if the period during which the Release could become effective and irrevocable spans two calendar years, payments of termination, payable when awards are paid generally to senior executives for such installments shall not commence until the first normal payroll date in the second calendar year;
(iii) A subject to Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) and subject to Executive’s copayment of premium amounts at the active employees’ rate, reimbursement for the amount of the remainder of the premiums for Executive’s and his or her covered dependents’ participation in the Company’s group health plans pursuant to COBRA for a period ending on the earliest of (A) the first anniversary of the Termination Date, (B) Executive becoming eligible for other employer-sponsored group health benefits or Medicare, and (C) the expiration of Executive’s rights under COBRA; provided, however, that in the event that the benefits provided herein would subject the Company or any of the Affiliates to any tax or penalty under the Patient Protection and Affordable Care Act (the “PPACA”) or Section 105(h) of the Internal Revenue Code of 1986 (the “Code”), Executive and the Company agree to work together in good faith to restructure the foregoing benefit;
(iv) a pro-rated rata portion of the actual annual cash incentive bonus that Executive would have earned for the fiscal year in which such termination the Termination Date occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed Executive is employed during the performance year through such fiscal year, payable on the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be when bonuses are otherwise paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate amount equal to the product Company’s executives and in all events by March 15 of (A) the sum of (1) Executive’s highest Base Salary during calendar year following the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2)calendar year in which the Termination Date occurs; provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);and
(v) Subject any earned but unpaid annual bonus for the fiscal year preceding the fiscal year in which the Termination Date occurs, payable on the date when bonuses for such fiscal year are otherwise paid to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except executives for the requirements of such fiscal year. Following Executive’s continued employmentQualifying Termination that does not occur during a CIC Protection Period, except as set forth in Section 3(a) in effect for active employees of the Company. In the event and this Section 3(b), Executive obtains shall have no further rights to any compensation or any other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)Agreement.
Appears in 1 contract
Samples: Severance Agreement (Zevia PBC)
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only If during the period commencing on Termination Period the occurrence employment of Executive shall terminate pursuant to a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)Qualifying Termination, then the Company shall pay or provide Executive withto Executive:
(i) within five (5) days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) Executive’s Accrued Obligationsbase salary through the Date of Termination and any bonus amounts which have become payable, payable in accordance with Section 8(a)(i);
to the extent not theretofore paid or deferred, (iiB) Any unpaid a pro rata portion of Executive’s annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive bonus for the fiscal year in which such termination occursExecutive’s Date of Termination occurs in an amount at least equal to (1) Executive’s Bonus Amount, the amount of which shall be based on target performance and multiplied by (2) a fraction, the numerator of which is the number of days elapsed during in the performance fiscal year in which the Date of Termination occurs through the date Date of termination Termination and the denominator of which is three hundred sixty-five (365), and reduced by (3) any amounts paid from the Company’s annual incentive plan for the fiscal year in which pro-rated annual cash incentive award shall be paid when awards are paid generally Executive’s Date of Termination occurs and (C) any accrued vacation pay, in each case to senior executives for such year;the extent not theretofore paid; plus
(ivii) A lump within five (5) days following the Date of Termination, a lump-sum severance payment in the aggregate cash amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (Bi) two (2); provided, unless ) times Executive’s highest annual rate of base salary during the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi12-monthly payroll installments over a month period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject immediately prior to Executive’s continued co-payment Date of premiumsTermination, continued participation for plus (ii) two (2) years times Executive’s Bonus Amount.
(iii) in addition to the payments set forth in Sections 4 (a) (i) and (ii) as well as Section 5, any stock incentives (as defined in the stock incentive plans maintained by the Company’s medical benefits plan which covers ) that have been awarded to Executive and his eligible dependents under the terms of the stock incentive plans maintained by the Company shall fully vest upon the same occurrence of a Change in Control, as such term is defined in Section 1(d) with 50% substituted for 25 % in Section 1 (d) (ii) (whether or not a Qualifying Termination has occurred) and all other terms and conditions (except for the requirements of Executive’s continued employment) any such stock incentive award shall remain in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral not inconsistent with the provisions of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b4 (a) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv(iii).
Appears in 1 contract
Samples: Change in Control Severance Agreement (Gevity Hr Inc)
Qualifying Termination. If, prior to If the Executive’s attainment of age 65, Executive’s 's employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only a Qualifying Termination during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company Executive shall pay or provide Executive withbe entitled to the following benefits:
(i) if the Executive’s Accrued Obligations's Qualifying Termination occurs in a calendar year subsequent to the year in which the Change in Control occurred, payable a pro rata portion (based on the number of calendar days that have elapsed before the Executive's Date of Termination) of the Executive's target or base incentive bonus possible under the Annual Bonus Program for the year in accordance with Section 8(a)(i)which termination occurs;
(ii) Any unpaid annual a lump sum cash payment equal to all outstanding long term incentive award earned with respect awards made to any fiscal year ending on or preceding the date Executive under the long term incentive programs of terminationthe Company (the "LTIP"), payable when awards are paid generally to senior executives for such yearassuming attainment of the applicable maximum performance targets;
(iii) A pro-rated annual cash incentive in lieu of any further salary payments to the Executive for periods subsequent to the fiscal year in which such termination occursDate of Termination and other severance benefits, the Company shall pay to the Executive a lump sum severance payment in an amount equal to two times the sum of (A) the higher of the Executive's annual base salary in effect immediately before the event or circumstance upon which shall be the Notice of Termination is based on target performance or such salary in effect immediately before the Change in Control and a fraction, (B) the numerator higher of (x) the highest award made to the Executive pursuant to the Company's annual incentive plan for each of the three measuring periods completed immediately before the event or circumstance upon which the Notice of Termination is based or (y) such highest award in respect of the number of days elapsed during three measuring periods completed immediately before the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such yearChange in Control;
(iv) A a lump sum severance payment amount (utilizing actuarial assumptions for lump sum payments in effect under the aggregate amount Company's qualified defined benefit retirement plan (the "Retirement Plan") immediately prior to the Date of Termination) equal to the product excess of (Aa) the actuarial equivalent lump sum value of the benefit under the Retirement Plan (determined without taking into account any early retirement subsidies) and the actuarial equivalent lump sum value of the benefit under any excess or supplemental retirement plan in which the Executive participates (together, the "SERP"), that the Executive would receive if the Executive's employment continued for two years after the Date of Termination, assuming for this purpose that all accrued benefits are fully vested, the Executive is two years older, such two years of additional service is counted as credited service as an officer under the SERP and assuming that the Executive's compensation in each of the calendar years fully or partially included because of the additional two years is the greatest of (1i) Executive’s highest Base Salary during the Protection Period plus compensation in the year of termination annualized pursuant to the assumptions used for the Retirement Plan, or (2ii) his annual target annual cash incentive award multiplied by compensation for the last completed calendar year before the Date of Termination or (Biii) two (2); provided, unless his compensation for the last completed calendar year before the Change of Control occurring on Control, over (b) the actuarial equivalent lump sum value of the Executive's actual benefit (paid or preceding such termination also meets payable in the requirements of Section 409A(a)(2)(A)(vfuture), if any, under the Retirement Plan (determined without taking into account any early retirement subsidies) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period SERP as of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application Date of Section 409A(a)(1)(A) and (B)Termination;
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation also provide to the Executive for one year after the Executive's Date of health benefits under this subsection shall reduce Termination out placement services that are suitable for senior executive officers and reasonably acceptable to the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and;
(vi) Payments falling under Section 10(b)iv shallthe Company shall also pay to the Executive all legal fees and expenses incurred by the Executive as a result of such Qualifying Termination (including all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement). Such payments shall be paid in a lump sum pursuant to such section, be paid made within ten five (105) business days after delivery of the Executive’s termination 's written request for payment accompanied with such evidence of employment. Provided, to fees and expenses incurred as the extent applicable under Company may reasonably require and
(vii) the payments provided for in this Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation 5(d) (other than Section 1.409A-1(b)(45(d)(iv), the payments and benefits payable to Executive under this Section 10(b5(d)(v)) shall be subject made not later than the fifth day following the Date of Termination; provided, however, that, if the amounts of such payments cannot be finally determined on or before such day, the Company shall pay to the Safe Harbor Executive on such day an estimate, as determined in good faith by the Company, of the minimum amount of such payments to which the Executive is clearly entitled and Postponement shall pay the remainder of such payments (together with interest at the rate provided in Section 1274(b)(2)(B) of the Internal Revenue Code of 1986, as amended (the "Code")) as soon as the amount thereof can be determined but in no event later than the thirtieth (30th) day after the Date of Termination. If the estimated payments exceed the amount subsequently determined to be due, such excess shall constitute a loan by the Company to the Executive, payable on the fifth (5th) business day after demand by the Company (together with interest at the rate provided in Section 8(c)(iv1274(b)(2)(B) of the Code). When payments are made under this Section, the Company shall provide the Executive with a written statement setting forth the manner in which such payments were calculated and the basis for such calculations including, without limitation, any opinions or other advice the Company has received from outside counsel, auditors or consultants (and any such written opinions or advice shall be attached to the statement).
Appears in 1 contract
Qualifying Termination. IfExcept as applies under paragraph 4(b), if prior to Executive’s attainment the expiration of age 65the Employment Period (without regard to any early termination of the Employment Period as set forth in this paragraph 4), Executive’s employment is involuntarily terminated by the Company is terminated without Cause (and other than due to his Disability) or is voluntarily terminated by Executive pursuant to a Constructive Termination, or the Company gives Executive notice pursuant to paragraph 1 of this Agreement that it is not renewing the Employment Period, then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment or the end of the Employment Period in the case of non-renewal (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control any fiscal year of the Company and ending on which ended prior to the second anniversary of date Termination Date, all earned but unused Vacation as of the Change in Control Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Protection PeriodAccrued Obligations”), then the Company shall pay or provide Executive with:
(i) and subject to Executive’s Accrued Obligationscontinued compliance with paragraphs 6, payable in accordance with Section 8(a)(i);
7 and 8 hereof, (iiB) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the aggregate an amount equal to the product of (Ax) one and one-half (1.5) and (y) the sum of Executive’s (1I) Base Salary and (II) Target Bonus in effect on the Termination Date, payable in equal monthly installments, in accordance with the Company’s normal payroll practices in effect on the Termination Date, for the eighteen (18) month period following the Termination Date, (C) an amount (the “Pro-Rata Amount”) equal to the product of (p) the percentage of the days in the applicable calendar year that Executive is employed by the Company and (q) Executive’s highest Base Salary annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(b) hereof, (D) continued Benefits during the Protection Period plus period beginning on the Termination Date and ending on the first to occur of (2xx) his annual target annual cash incentive award multiplied the date eighteen (18) months after the Termination Date and (yy) the first date after the date hereof on which Executive accepts employment from a company or other entity other than a member of the Company Group, and (E) outplacement services provided by (B) two (2); provideda nationally-recognized outplacement firm, unless such services to be commensurate with the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (services commonly provided to a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not person in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject position comparable to Executive’s continued co-payment of premiums, continued participation for two (2) years in position with the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) , subject, in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on 90 days prior to the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award bonus earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards bonuses are paid generally to senior executives for such year;
(iii) A proPro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such yearRated Bonus;
(iv) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest then Base Salary during the Protection Period plus (2) his annual target annual cash incentive award bonus multiplied by (B) two (2), to be paid within ten (10) business days after Executive’s termination from employment; provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive (and his eligible dependents dependents) upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shallAll of Executive’s unvested options and long-term incentive awards granted to Executive through the date of termination shall vest and all Executive's options shall continue to be exercisable until the earlier of (x) one year after the date of termination and (y) the expiration of the original scheduled term of such options. In addition, if to this Section 10(c) applies, any limitation on the acceleration of the vesting of options (that would otherwise be paid in a lump sum applicable pursuant to Section 7.4 of Rexnord Corporation 2012 Performance Incentive Plan or otherwise) to reduce or eliminate the effects of Section 280G and/or Section 4999 of the Code, shall not be implemented unless the after-tax amount Executive receives would be increased (as compared to the after-tax amount Executive would receive in the absence of such sectionlimitation on acceleration of vesting), and in such event such limitation on acceleration of vesting shall be paid within ten (10) business days after implemented to the minimum extent necessary to maximize the Executive’s termination 's after-tax amount, provided that Executive shall determine the order in which such limitation on acceleration of employmentvesting is applied or, solely if required to comply with Section 409A of the Code, the option acceleration limitation shall be applied in the reverse order of scheduled vesting dates (i.e., the option tranche that would have vested first in the absence of a Change in Control will be the last tranche to have its acceleration limited). Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b10(c) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv). For the avoidance of doubt, the provisions of this Section 10(c) shall not apply unless a Change in Control actually occurs. In the event of a termination of employment during the 90 days prior to the occurrence of a Change in Control, (x) the payment under Section 10(c)(iv) shall be payable (or commence to be payable, as applicable) within ten days following the Change in Control (not termination of employment), and (y) the acceleration of vesting of Executive’s unvested options and long-term incentive awards shall not occur until the occurrence of the Change in Control (and if such options and awards would otherwise be forfeited during such 90 day period in the absence of a Change in Control, such awards shall remain outstanding for up to 90 days solely for the purpose of determining whether Executive becomes entitled to vest in such awards pursuant to Section 10(c)(vi) but otherwise shall not be payable or exercisable following the date on which they would have otherwise been forfeited (unless the Change in Control subsequently occurs during such 90-day period)).
Appears in 1 contract
Samples: Employment Agreement (Rexnord Corp)
Qualifying Termination. If, prior to Executive’s attainment of age 65during the Term, (i) Executive resigns for Good Reason or (ii) the Bank terminates Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) for Cause or is voluntarily terminated by Executive for Good ReasonDisability (each, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection PeriodQualifying Termination”), then the Company shall pay or provide Executive withthen, subject to Section 6 hereof:
(i1) Executive’s Accrued Obligations, payable the Bank shall pay to Executive in accordance with Section 8(a)(i);
a lump sum in cash within thirty (ii30) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding days after the date of termination, payable when awards are the exact payment date to be determined by the Bank, Executive’s Base Salary through the date of termination to the extent not theretofore paid generally (the “Accrued Salary”), (ii) any earned and unpaid Annual Bonus for any year prior to senior executives for such yearthe year in which the date of termination occurs, and (iii) any unreimbursed business expenses incurred by Executive on or before the date of termination;
(iii2) A pro-rated annual cash incentive Executive shall be entitled to receive a pro rata portion of the Annual Bonus for the fiscal year in which such the date of termination occurs, equal to (i) the amount of which shall be Annual Bonus, if any, that would have been earned by Executive for such year if he had remained employed on such payment date, based on target actual performance and under applicable financial metrics, multiplied by (ii) a fraction, the numerator of which is the number of days elapsed worked by Executive during the performance such final year through the date of termination and the denominator of which is 365365 (the “Final Year Pro Rata Bonus”), which pro-rated annual cash incentive award and such Final Year Pro Rata Bonus shall be paid when a single lump sum cash payment at the time such bonus awards are normally paid generally to senior executives for such plan year;
(iv3) the Bank shall pay to Executive an amount equal to two (2) times the sum of (x) Executive’s then-current Base Salary plus (y) the average of the Annual Bonuses earned by Executive for each of the three (3) calendar years immediately preceding the year in which the date of termination occurs (the “Non-CIC Severance Payment”); provided, however, that if such Qualifying Termination occurs during the period beginning three months prior to, and ending eighteen (18) months after the closing of, a Change in Control (as defined in Exhibit A attached hereto), then the Bank shall pay to Executive an amount equal to 2.99 times the sum of (i) Executive’s then-current Base Salary plus (ii) the average of the Annual Bonuses earned by Executive for each of the three calendar years immediately preceding the year in which the date of termination occurs (the “CIC Severance Payment”). Subject to Sections 6 and 12 hereof, the Non-CIC Severance Payment or the CIC Severance Payment, as applicable, shall be paid in a single lump sum severance in cash within sixty (60) days following the date of termination (except that the excess of the CIC Severance Payment over the non-CIC Severance Payment on the date of the Qualifying Termination shall be paid within sixty (60) days following the date of the closing of the relevant Change in Control if the termination of employment occurs during the period beginning three months prior to and ending on the date of the Change in Control), the exact payment date to be determined by the Bank. For the avoidance of doubt, Executive shall not be entitled to receive both the CIC Severance Payment and the Non-CIC Severance Payment;
(4) if Executive elects to continue participation in any group medical, dental, vision and/or prescription drug plan benefits to which Executive and/or Executive’s eligible dependents would be entitled under Section 4980B of the aggregate Code (COBRA), then for eighteen (18) months following the date of termination (the “COBRA Reimbursement Period”), the Bank shall pay to Executive monthly payments (the “COBRA Payments”) of an amount equal to the product excess of (Aa) the sum COBRA cost of such coverage over (1b) the amount that Executive would have had to pay for such coverage if he had remained employed during the COBRA Reimbursement Period and paid the active employee rate for such coverage, less withholding for taxes and other similar items; provided, however, that (i) if Executive becomes eligible to receive group health benefits under a program of a subsequent employer or otherwise, the Bank’s obligation to pay any portion of the cost of health coverage as described herein shall cease, except as otherwise provided by law; and (ii) the COBRA Reimbursement Period shall only run for the period during which Executive is eligible to elect health coverage under COBRA and timely elects such coverage;
(5) the Bank shall continue to pay (no less frequently than monthly) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) long-term disability premiums and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to life insurance premiums for Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over for a period of twenty-four eighteen (2418) months, not in a lump sum, to months (the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B“Other Premium Payments”);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi6) Payments falling under Section 10(b)iv shallto the extent not theretofore paid or provided, if the Bank shall timely pay or provide to Executive any other amounts or benefits required to be paid in a lump sum pursuant or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Bank and its affiliated companies (such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments other amounts and benefits payable to Executive under this Section 10(b) shall be subject hereinafter referred to as the Safe Harbor and Postponement provided at Section 8(c)(iv“Other Benefits”).
Appears in 1 contract
Qualifying Termination. IfThe provisions of Section 5(c) hereof to the contrary notwithstanding, prior to Executive’s attainment of age 65, Executive’s employment if the Executive is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is Executive voluntarily terminated by Executive terminates his employment for Good Reason, Reason in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Period”)of the Company, then the Company Executive shall pay or provide Executive withbe entitled to receive:
(i) Executive’s All Accrued Obligations, payable in accordance with Section 8(a)(iObligations which shall be paid to the Executive within thirty (30) days after the Date of Termination (or such longer period as may apply under the applicable employee retirement or welfare benefit plan of the Company);
(ii) Any unpaid annual cash incentive award The amount of any bonus pursuant to Section 3(b) earned with respect for the previous fiscal year, to any fiscal year ending on or preceding the date extent not theretofore paid, within thirty (30) days after the Date of termination, payable when awards are paid generally to senior executives for such year;Termination
(iii) A pro-rated annual cash incentive bonus pursuant to Section 3(b) for the fiscal year in which such termination occurs, the amount of which shall be based on target actual performance for such year, and prorated based upon a fraction, the numerator of which is the number of days elapsed during full and partial months which elapse between the performance first day of the fiscal year through to which such bonus relates and the date Date of termination Termination, and the denominator of which is 36512, which pro-rated annual cash incentive award pro rata bonus shall be paid when awards such bonuses are paid generally to other senior executives of the Company; provided, for the 2005 fiscal year, such bonus shall not be less than a Target Bonus amount prorated based on the ratio of the period of employment from the Effective Date to the Date of Termination to the total period from the Effective Date to the end of such fiscal year;.
(iv) A lump sum severance payment in the aggregate An amount equal to the product of three (3) times the sum of the Executive’s (A) the sum of (1) Executive’s highest then-current Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); providedhis Target Bonus amount for the year of termination, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to sum in cash within seven (7) days following the extent necessary to avoid effectiveness of a release of claims (that is not revoked) in the application of manner set forth in Section 409A(a)(1)(A) and (B5(d);
(v) Subject Continuation of medical benefits for thirty-six (36) months following the Date of Termination, subject to the Executive’s continued co-payment of premiumspremiums at active employee rates for such coverage, continued participation for two (2) years in the Company’s medical which benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of shall be concurrent with coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits available under COBRA; andprovided, that (A) Executive timely elects COBRA continuation coverage and timely pays all premiums provided under this Section 6(c)(v), and (B) the medical benefits provided under this Section 6(c)(v) shall terminate at such time during the period thereof that the Executive becomes covered for comparable medical benefits under a subsequent employer’s benefit plan;
(vi) Payments falling under On the Date of Termination, all options to purchase stock of the Company and other long-term incentive or equity awards (except as set forth in Section 10(b)iv shall6(b) above) theretofore granted to the Executive and not exercised by the Executive shall vest (or not vest), if to and any such stock options shall be paid exercisable, in a lump sum pursuant to such section, be paid within ten (10) business days after accordance with the terms of the applicable stock option plans and agreements between the Company and the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv).;
Appears in 1 contract
Qualifying Termination. IfExcept as applies under paragraph 4(b), if Executive’s employment by the Company is terminated without Cause or by Executive pursuant to a Constructive Termination, then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for any fiscal year of the Company which ended prior to the Termination Date, all earned but unused Vacation as of the Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Accrued Obligations”), and subject to Executive’s attainment of age 65continued compliance with paragraphs 6, Executive’s employment is involuntarily terminated by the Company without Cause 7, 8 and 9 hereof, (and other than due B) an amount equal to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control one times (“Protection Period”), then the Company shall pay or provide Executive with:
(i1X) Executive’s Accrued ObligationsBase Salary in effect on the Termination Date, payable in equal monthly installments, in accordance with Section 8(a)(i);
the Company’s normal payroll practices in effect on the Termination Date, for the twelve (ii12) Any unpaid annual cash incentive award earned with respect to any fiscal year ending month period following the Termination Date, (C) the full Signing Bonus amount, payable in a lump sum on or preceding the date of sixtieth (60th) day following termination, payable when awards are paid generally to senior executives for such year;
the extent not previously paid, (iiiD) A proan amount (the “Pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivRata Amount”) A lump sum severance payment in the aggregate amount equal to the product of (Ap) the sum percentage of the days in the applicable calendar year that Executive is employed by the Company and (1q) Executive’s highest Base Salary annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(c) hereof, (E) if the Executive and/or his dependents elect continuation coverage under COBRA, payment by the Company of the COBRA premiums for the Executive and/or his dependents in the same amount paid by the Company prior to the Termination Date during the Protection Period plus period beginning on the Termination Date and ending on the first to occur of (2xx) his annual target annual cash incentive award multiplied by the date twelve (B12) two months after the Termination Date and (2); providedyy) the first day Executive becomes eligible for similar benefits under another employer's plans, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v(F) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary allowed under the applicable plans, continued participation in the Company's life, long-term disability, and group accident plans beginning on the Termination Date and ending on the first to avoid occur of (xx) the application of Section 409A(a)(1)(Adate twelve (12) months after the Termination Date and (B);
yy) the first day Executive becomes eligible for similar benefits under another employer's plans, and (vG) Subject outplacement services provided by a nationally-recognized outplacement firm, such services to be commensurate with the services commonly provided to a person in a position comparable to Executive’s continued co-payment of premiums, continued participation for two (2) years in position with the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) , subject, in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 1 contract
Qualifying Termination. IfExcept as applies under paragraph 4(b), if prior to Executive’s attainment the expiration of age 65the Employment Period (without regard to any early termination of the Employment Period as set forth in this paragraph 4), Executive’s employment is involuntarily terminated by the Company is terminated without Cause (and other than due to his Disability) or is voluntarily terminated by Executive pursuant to a Constructive Termination, or the Company gives Executive notice pursuant to paragraph 1 of this Agreement that it is not renewing the Employment Period, then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment or the end of the Employment Period in the case of non-renewal (the “Termination Date”), and (ii) Executive shall be entitled to receive (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for Good Reason, in either case only during the period commencing on the occurrence of a Change in Control any fiscal year of the Company and ending on which ended prior to the second anniversary of date Termination Date, all earned but unused Vacation as of the Change in Control Termination Date, and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Protection PeriodAccrued Obligations”), then the Company shall pay or provide Executive with:
and subject to Executive’s continued compliance with paragraphs 6, 7 and 8 hereof, (iB) an amount equal to one times (1x) Executive’s Accrued ObligationsBase Salary in effect on the Termination Date, payable in equal monthly installments, in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending the Company’s normal payroll practices in effect on or preceding the date of terminationTermination Date, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurstwelve (12) month period following the Termination Date, (C) an amount (the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro“Pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivRata Amount”) A lump sum severance payment in the aggregate amount equal to the product of (Ap) the sum percentage of the days in the applicable calendar year that Executive is employed by the Company and (1q) Executive’s highest Base Salary annual Bonus for such full year if Executive’s employment had not terminated (without regard to any subjective performance goals), payable in accordance with paragraph 3(b) hereof, (D) continued Benefits during the Protection Period plus period beginning on the Termination Date and ending on the first to occur of (2xx) his annual target annual cash incentive award multiplied the date twelve (12) months after the Termination Date and (yy) the first date after the date hereof on which Executive accepts employment from a company or other entity other than a member of the Company Group, and (E) outplacement services provided by (B) two (2); provideda nationally-recognized outplacement firm, unless such services to be commensurate with the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (services commonly provided to a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not person in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject position comparable to Executive’s continued co-payment of premiums, continued participation for two (2) years in position with the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) , subject, in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Providedeach case, to the extent applicable under Section 409A as a “deferral of compensation,” withholding and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall be subject to the Safe Harbor and Postponement provided at Section 8(c)(iv)other appropriate deductions.
Appears in 1 contract
Qualifying Termination. If, prior to Executive’s attainment of age 65, The Company may also terminate the Executive’s employment is involuntarily terminated by with the Company at any time without Cause, and the Executive may terminate the Executive’s employment with the Company at any time for Good Reason (as defined in Section 3(f)(i)(B)) (a termination without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only during Reason is a “Qualifying Termination”).
(i) On a Qualifying Termination that is not within the two-year period commencing on the occurrence of following a Change in Control of (as defined in Section 3(f)(i)(A)), the Executive shall be entitled to receive from the Company and ending on (A) the second anniversary of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(i) Executive’s Accrued Obligations, payable Other Benefits in accordance with Section 8(a)(i3(a);
; (iiB) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of termination, payable when awards are paid generally to senior executives for such year;
(iii) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(iv) A lump sum severance payment in the an aggregate amount (the “Severance Amount”) equal to the product of (A) two times the sum of (1) Executive’s highest the Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by an amount equal to the Annual Target Bonus; (BC) two a bonus for the year of termination in accordance with Section 2(b); and (2D) immediate vesting of any service-based vesting conditions applicable to long-term awards previously granted (including awards granted under the Equity Incentive Plan); provided, unless the Change however, that any such awards shall remain subject to achievement of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”)performance-vesting conditions, the amount payable to Executive under this subparagraph (iv) if any. The Severance Amount shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to and the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment incentive awards that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection vest shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid or settled in a lump sum pursuant to such sectionsum, be paid within ten (10) business on the first regularly scheduled payroll date that occurs at least 30 days after the Executive’s termination of employment (or, for awards subject to achievement of performance-vesting conditions, within 30 days after the committee certifies the level of achievement of the performance conditions), subject to the Executive’s compliance with the requirement to deliver the release contemplated pursuant to Section 4(a); provided that if the period in which the release is subject to consideration and revocation spans two calendar years, then such amounts shall be paid or settled in the later year.
(ii) On a Qualifying Termination that is not within the two-year period following a Change in Control, the Company shall also provide to the Executive, during the two year period following the Executive’s date of termination, medical, dental, life and disability insurance coverage for the Executive and the members of the Executive’s family which is not less favorable to the Executive than the group medical, dental, life and disability insurance coverage carried by the Company for the Executive and the members of the Executive’s family immediately prior to such termination of employment. Provided, subject to the Executive’s compliance with the requirement to deliver the release contemplated pursuant to Section 4(a); provided, however, that the obligations set forth in this sentence shall terminate to the extent applicable under the Executive obtains comparable medical, dental, life or disability insurance coverage from any other employer during such period, but the Executive shall not have any obligation to seek or accept employment during such period, whether or not any such employment would provide comparable medical and dental insurance coverage; and provided further, however, that the Executive shall be obligated to pay an amount equal to the active employee contribution, if any, for each such coverage. Notwithstanding the foregoing but (for the avoidance of doubt) without limiting the provision of coverage provided in this Section 409A 3(b)(ii) above, if at any time the Company determines that its partial subsidy of the Executive’s premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as a amended (the “deferral Code”) or any other Code section, law or regulation of compensation,” similar effect (including but not limited to the 2010 Patient Protection and not Affordable Care Act, as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing the payments and benefits payable subsidized premiums described above, the Company shall instead pay a fully taxable monthly cash payment in an amount such that, after payment by the Executive of all taxes on such payment, the Executive retains an amount equal to Executive under this Section 10(bthe Company’s portion of the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of the two year period.
(iii) For the avoidance of doubt, the payment of the Severance Amount shall be subject to in lieu of any amounts payable under the Safe Harbor Company’s severance policy (as then in effect) and Postponement provided at Section 8(c)(iv)the Executive hereby waives any and all rights thereunder.
Appears in 1 contract
Samples: Employment Agreement (Kaleyra, Inc.)
Qualifying Termination. If, prior If the employment of Executive terminates pursuant to Executive’s attainment of age 65, Executive’s employment is involuntarily terminated by the Company without Cause (and other than due to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only a Qualifying Termination during the period commencing on the occurrence of a Change in Control of the Company and ending on the second anniversary of date of the Change in Control (“Protection Termination Period”), then the Company shall pay or provide Executive withto Executive:
(i) within ten days following the Date of Termination, a lump-sum cash amount equal to the sum of (A) the pro rata share of any of Executive’s Accrued Obligationsbase salary earned, payable but not yet paid, through the Date of Termination and any bonus amounts that have become payable, to the extent not theretofore paid or deferred, plus (B) any compensation previously deferred by Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon) and any accrued vacation pay, in accordance with Section 8(a)(i)each case to the extent not theretofore paid;
(ii) Any unpaid a cash amount for projected payments to the Executive under the Company’s incentive programs, equal to the average annual cash incentive award earned with respect to any fiscal year ending on or preceding bonus actually paid in the date of termination, payable when awards are paid generally to senior executives for such yearprior two years;
(iii) A proa cash amount equal to the lesser of (A) product of (1) 2 multiplied by (2) Executive’s annual rate of base salary as in effect immediately prior to the Date of Termination, and (B) the product of (1) 2.99 multiplied by (2) Executive’s “Base Amount,” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the “Code”), such amount to be paid, at the Company’s option, in a lump sum within 30 days following the Date of Termination or in equal monthly installments over the 24-rated annual cash incentive for month period following the fiscal year in which such termination occurs, the amount Date of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which pro-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;Termination.
(iv) A lump sum severance payment in for two years following the aggregate amount equal Date of Termination, whether or not under any health or welfare benefit plan then maintained, at the Company’s sole expense health and welfare benefits that are substantially the same as the health and welfare benefits offered to the product of Executive (A) and the sum of (1) Executive’s highest Base Salary during dependents) immediately before the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); providedQualifying Termination, unless except that the Change of Control occurring on or preceding such termination also meets health and welfare benefits to which the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive is entitled under this subparagraph Subsection (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employment) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(b) shall will be subject to the Safe Harbor Executive’s compliance with the Executive’s confidentiality and Postponement non-competition agreement and will be reduced to the extent that comparable health and welfare benefits are received by the Executive from an employer other than the Company the two year period following the Date of Termination. The fact that the cost of the participation by the Executive, or the Executive’s dependents or beneficiaries, in any health or welfare benefit plan was paid indirectly by the Company, as a reimbursement or a credit to the Executive, before the Qualifying Termination does not mean that the corresponding health and welfare benefits were not “provided at Section 8(c)(ivto the Executive” by the Company for purposes of this Subsection (iv). As used in this subsection, health and welfare benefits shall include: all life insurance, disability insurance, accidental death and dismemberment insurance and health care (medical, dental and prescription drug) coverage.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Caraustar Industries Inc)
Qualifying Termination. IfExcept as applies under paragraph 4(b), if Executive’s employment by the Company is terminated without Cause or by Executive pursuant to a Constructive Termination, then (i) the Employment Period shall be deemed to have ended as of the date of the termination of employment (the “Termination Date”), and (ii) Executive shall be entitled to receive: (A) all earned and accrued Base Salary through the Termination Date, any then accrued and unpaid Bonus for any fiscal year of the Company which ended prior to the Termination Date, all earned but unused Vacation as of the Termination Date and, subject to the timely submission of required documentation, all unpaid, reimbursable Expenses as of the Termination Date (the “Accrued Obligations”), and subject to Executive’s attainment continued compliance with paragraphs 6, 7, 8, 9, and 10 hereof; (B) an amount equal to the sum of age 65, the Executive’s employment is involuntarily terminated Base Salary and the Target Bonus, each as in effect on the Termination Date, payable in equal monthly installments, in accordance with the Company’s normal payroll practices in effect on the Termination Date, for the twelve (12) month period following the Termination Date; (C) immediate vesting of the next tranche of time-based restricted stock units (that would have vested had Executive continued in employment) and immediate vesting of a pro-rata portion of the time-based restricted units described in paragraph 3(f) above based upon the actual number of months Executive has been employed by the Company without Cause divided by thirty-six; and (and other than due D) if the Executive and/or his dependents elect continuation coverage under COBRA, payment by the Company of the COBRA premiums for the Executive and/or his dependents in the same amount paid by the Company prior to his Disability) or is voluntarily terminated by Executive for Good Reason, in either case only the Termination Date during the period commencing beginning on the occurrence of a Change in Control of the Company Termination Date and ending on the second anniversary first to occur of date of the Change in Control (“Protection Period”), then the Company shall pay or provide Executive with:
(ix) Executive’s Accrued Obligations, payable in accordance with Section 8(a)(i);
(ii) Any unpaid annual cash incentive award earned with respect to any fiscal year ending on or preceding the date of terminationtwelve (12) months after the Termination Date and (y) the first day Executive becomes eligible for similar benefits under another employer’s plans, payable when awards are paid generally subject, in each case, to senior executives for such year;
withholding and other appropriate deductions. For clarity, any restricted stock units subject to performance conditions (iiiincluding those described in paragraph 3(e)) A pro-rated annual cash incentive for the fiscal year in which such termination occurs, the amount of which shall be based on target performance and a fraction, the numerator of which is the number of days elapsed during the performance year through the date of termination and the denominator of which is 365, which protime-rated annual cash incentive award shall be paid when awards are paid generally to senior executives for such year;
(ivbased restricted stock units described in paragraph 3(f) A lump sum severance payment in the aggregate amount equal to the product of (A) the sum of (1) Executive’s highest Base Salary during the Protection Period plus (2) his annual target annual cash incentive award multiplied by (B) two (2); provided, unless the Change of Control occurring on or preceding such termination also meets the requirements of Section 409A(a)(2)(A)(v) and Treasury Regulation Section 1.409A-3(i)(5) (or any successor provision) thereunder (a “409A Change in Control”), the amount payable to Executive under this subparagraph (iv) shall be paid to Executive in equal semi-monthly payroll installments over a period of twenty-four (24) months, not in a lump sum, to the extent necessary to avoid the application of Section 409A(a)(1)(A) and (B);
(v) Subject to Executive’s continued co-payment of premiums, continued participation for two (2) years in the Company’s medical benefits plan which covers Executive and his eligible dependents upon the same terms and conditions (except for the requirements of Executive’s continued employmentpro-rata portion described in paragraph 4(a)(C) in effect for active employees of the Company. In the event Executive obtains other employment that offers substantially similar or more favorable medical benefits, such continuation of coverage by the Company under this subsection shall immediately cease. The continuation of health benefits under this subsection shall reduce the period of coverage and count against Executive’s right to healthcare continuation benefits under COBRA; and
(vi) Payments falling under Section 10(b)iv shall, if to be paid in a lump sum pursuant to such section, be paid within ten (10) business days after the Executive’s termination of employment. Provided, to the extent applicable under Section 409A as a “deferral of compensation,” and not as a “short-term deferral” under Treasury Regulation Section 1.409A-1(b)(4), the payments and benefits payable to Executive under this Section 10(babove) shall be subject to forfeited immediately upon the Safe Harbor and Postponement provided at Section 8(c)(iv)Termination Date.
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