Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment without Cause, or (ii) there is a Constructive Termination, then (a) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination; (b) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.0; such payment to be made in a lump sum six months following the Date of Termination; (c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive; (d) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death; (e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory to the Company.
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Samples: Change in Control Agreement (Raven Industries Inc), Change in Control Agreement (Raven Industries Inc)
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after from the date of such Change in Control (i) the Company, except in the case of Company shall terminate the Executive’s 's employment other than for death, terminates the Executive’s employment without Disability, or Cause (it being understood that a purported termination for Disability or for Cause which is finally determined not to have been proper shall not be a termination for Disability or for Cause), or (ii) there is a Constructive Terminationthe Executive shall terminate his employment for Good Reason, then
(aA) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(bB) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (Ai) the sum of (ia) the Executive’s 's annual base salary in effect as of the Date of Termination and (iib) 60% of the maximum target or goal amount that otherwise would be earned under the Senior Management Incentive Plan and any other executive compensation plan in which the Executive is then participating for the year in which such Date of Termination occurs (assuming all such amounts under such plan had been earned) and (Bii) the number 1.02.99; such payment to be made in a lump sum six months on or before the fifth calendar day following the Date of Termination;
(cC) for a period of not less than twenty-four (24) months following the Executive shall, effective on the Executive's Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether Company will reimburse the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall all reasonable expenses incurred by him (A) but not become payable until when including any arrangement by which the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms prepays expenses for a period of the Policy, and greater than thirty (B30) not be provided to the extent such benefits are provided to the Executive by days) in seeking employment with another employer at no cost to including the Executive;fees of a reputable outplacement organization; and
(dD) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within for two (2) years after following the date Executive's Date of Termination, the Company shall maintain in full force and effect for the continued benefit of the Executive, all employee welfare benefit plans and perquisite programs in which the Executive was entitled to participate immediately prior to the Date of Termination (provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs). In the event that the Executive's participation in any such plan or program is barred, the Company shall, at its sole cost and expense, arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred. Anything in this Agreement to the contrary notwithstanding, if a Change in Control occurs and the Executive's employment with the Company is terminated by the Company or the Executive terminates his employment for Good Reason prior to the date on which the Change in Control occurs, such termination of employment shall be deemed to be a termination of employment after a Change in Control for purposes of this Agreement, including, without limitation, this Section 3, if the Executive shall die while still an employee have reasonably demonstrated that such termination of employment (i) was at the Companyrequest of a third party who has taken steps reasonably calculated to effect a Change in Control, the amount specified or (ii) otherwise arose in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all connection with or in anticipation of the benefits specified a Change in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory to the CompanyControl.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment without Cause, or (ii) there is a Constructive Termination, then
(a) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.0; such payment to be made in a lump sum six months following the Date of Termination;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx sxx in form and content satisfactory to the Company.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment without Cause, or (ii) there is a Constructive Termination, then
(a) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.0[2.0 for Mxxxxxx, Ixxxxxxxx and Rxxxxx, 1.0 for all others]; such payment to be made in a lump sum six months following the Date of Termination;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx sxx in form and content satisfactory to the Company.;
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control Control, there occurs: (i) the Company, except in the case of the Executive’s 's death, terminates Executive's Termination of Employment by the ExecutiveCompany without Cause (which “Cause” for the sake of clarity shall not include termination occasioned by ill-advised good faith judgment or negligence in connection with the Company’s employment without Causebusiness), or (ii) there is a Executive's Constructive Termination, then:
(a) the The Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s 's annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.02.5 (CEO), 2.0 (CFO), 1.5 (Vice Presidents); such payment to be made in a lump sum six months on or before the 45th calendar day following the Date of Termination; provided, that no such payment will be made unless Executive has executed and delivered to the Company the release and covenant described in Section 3(d) below, and any period during which Executive may revoke or rescind such release and covenant has expired before that 45th day; and provided further, that if, as of the Date of Termination: (x) any payment due under this Section 3 is reasonably deemed by the Company to be "deferred compensation" (as defined in the 409A Regulations), (y) any portion of the payment due under this Section 3(b) would exceed the sum of the applicable limited separation pay exclusions as determined pursuant to the 409A Regulations, and (z) Executive is treated as a specified employee (as defined in the 409A Regulations), then payment of such excess amount shall be delayed until the six-month anniversary of the Date of Termination (or the date of Executive's death, if earlier). If Executive continues to perform any services (as an employee or otherwise) for the Company or a Subsidiary of the Company, as defined in Section 5(a), after the Date of Termination, such six-month period shall be measured from the date of Executive's "separation from service" as defined pursuant to the 409A Regulations;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event If a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection Section 3(a) shall be paid by the Company to such Executive’s 's estate, ; and such deceased Executive’s 's spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s 's Senior Executive officer or Senior Management Retirement Benefits Policy (as applicable to Executive) as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(ed) the The Company’s 's obligations to provide the payments and benefits in this Section 2 3 are conditioned on Executive signing a general release of legal claims and covenant not to xxx xxx, in the form and content satisfactory attached as Exhibit A to this Agreement, with such changes as may be reasonably required to reflect changes in applicable law or circumstances subsequent to the date first above written; and the Company shall deliver such release and covenant to Executive within 10 calendar days after the earlier of (i) the Date of Termination or (ii) the Company's receipt of a Notice of Termination asserting a Constructive Termination;
(e) The Company shall deduct, from any payment made under this Agreement, any Federal or state taxes required by law to be withheld from such payment; and [SUBSECTION (f) INCLUDED FOR MESSRS. XXXXXX AND XXXXXXX:]
(f) Executive shall, effective on the Date of Termination, be deemed to be qualified and vested in all respects for the post-retirement benefits of the Company's Senior Executive Officer or Senior Management Benefits Policy (as applicable to Executive), regardless of whether Executive otherwise then satisfies the requirements for early retirement under such Policy; provided, that the post-retirement benefits specified under this Section 3(c) shall (i) not become payable until Executive reaches age 65, unless such benefits are otherwise payable due to Executive's eligibility for early retirement benefits under the terms of the Policy as of the Date of Termination; and (ii) not be provided to the extent such benefits are provided to Executive by another employer at no cost to Executive.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, Company and (b) within two (2) years after during the date of such Change in Control CIC Protection Period there occurs: (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment Termination of Employment by the Company without Cause, or (ii) there is a Executive’s Constructive Termination, then, subject to Executive continuing to fulfill his obligations under Sections 6.3(b), 6.5 and 12 hereof:
(a) the The Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Short Term Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.02.5; such payment to be made in a lump sum six months on or before the 45th calendar day following the Date of Termination; provided, that no such payment will be made unless Executive has executed and delivered to the Company the release and covenant described in Section 6.5 below, and any period during which Executive may revoke or rescind such release and covenant has expired before that 45th day; and provided further, that if, as of the Date of Termination: (x) any payment due under this Section 6.3 is reasonably deemed by the Company to be “deferred compensation” (as defined in the 409A Regulations), (y) any portion of the payment due under this Section 6.3 would exceed the sum of the applicable limited separation pay exclusions as determined pursuant to the 409A Regulations and (z) Executive is treated as a specified employee (as defined in the 409A Regulations), then payment of such excess amount shall be delayed until the six-month anniversary of the Date of Termination (or the date of Executive’s death, if earlier). If Executive continues to perform any services (as an employee or otherwise) for the Company or a Subsidiary of the Company after the Date of Termination, such six-month period shall be measured from the date of Executive’s “separation from service” as defined pursuant to the 409A Regulations;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event If a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after and Executive dies during the date of such Change in Control the Executive shall die CIC Protection Period while still an employee of the Company, the amount specified in Subsection 3(aSection 6.3(a) shall be paid by the Company to such Executive’s estate, ; and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Officer Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(d) In addition to the benefits provided for in Section 5 (and regardless if Executive is eligible to receive such benefits pursuant to terms and conditions of Section 5), Executive shall, effective on the Date of Termination, be deemed to be qualified and vested in all respects for the post-retirement benefits of the Senior Executive Officer Policy, regardless of whether Executive otherwise then satisfies the requirements for early retirement under the Senior Executive Officer Policy; provided, that the post-retirement benefits specified under this Section 6.3(d) shall (i) not become payable until Executive reaches age 65, unless such benefits are otherwise payable due to Executive’s eligibility for early retirement benefits under the terms of the Senior Executive Officer Policy as of the Date of Termination; and (ii) not be provided to the extent such benefits are provided to Executive by another employer at no cost to Executive; and
(e) Notwithstanding anything stated in any other agreement between the Company and Executive that may be construed to the contrary, the Company shall cause any unvested portion of Executive’s restricted stock units, performance awards and any other equity awards granted to Executive under the Company’s obligations 2010 Stock Incentive Plan, as amended, to provide the payments and benefits immediately vest in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory full to the Companyextent not already vested. Any performance awards will vest at the target level.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after from the date of such Change in Control (i) the Company, except in the case of Company shall terminate the Executive’s 's employment other than for death, terminates the Executive’s employment without Disability, or Cause (it being understood that a purported termination for Disability or for Cause which is finally determined not to have been proper shall not be a termination for Disability or for Cause), or (ii) there is a Constructive Terminationthe Executive shall terminate his employment for Good Reason, then
(aA) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(bB) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (Ai) the sum of (ia) the Executive’s 's annual base salary in effect as of the Date of Termination and (iib) 60% of the maximum target or goal amount that otherwise would be earned under the Senior Management Incentive Plan and any other executive compensation plan in which the Executive is then participating for the year in which such Date of Termination occurs (assuming all such amounts under such plan had been earned) and (Bii) the number 1.02.99; such payment to be made in a lump sum six months on or before the fifth calendar day following the Date of Termination;
(cC) for a period of not less than twenty-four (24) months following the Executive's Date of Termination, the Company will reimburse the Executive shallfor all reasonable expenses incurred by him (but not including any arrangement by which the Executive prepays expenses for a period of greater than thirty (30) days) in seeking employment with another employer including the fees of a reputable outplacement organization;
(D) if the payment provided under paragraph (B) above (the "Contract Payment") or any other portion of the Total Payments (as defined below) will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code, effective the Company shall pay the Executive on or before the fifth calendar day following the Date of Termination, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Contract Payment and such other Total Payments and any federal and state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be deemed a “Participant” equal to the Contract Payment and vested in all respects under such other Total Payments. For purposes of determining whether any of the Company’s Senior Executive payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or Senior Management Retirement Benefits Policy, regardless of whether benefits received or to be received by the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event connection with a Change in Control of the Company shall have occurred while or the Executive is an employee Executive's termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a Change in Control of the Company or any corporation affiliated (or which, as a result of the completion of a transaction causing a Change in Control, will become affiliated) with the Company within the meaning of Section 1504 of the Code (together with the Contract Payment, the "Total Payments") shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Executive the Total Payments (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code either in their entirety or in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments or (b) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive if such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(d) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional gross-up payment in respect of such excess at the time that the amount of such excess is finally determined; and, within
(E) for two (2) years after following the date Executive's Date of Termination, the Company shall maintain in full force and effect for the continued benefit of the Executive, all employee welfare benefit plans and perquisite programs in which the Executive was entitled to participate immediately prior to the Date of Termination (provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs). In the event that the Executive's participation in any such plan or program is barred, the Company shall, at its sole cost and expense, arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred. Anything in this Agreement to the contrary notwithstanding, if a Change in Control occurs and the Executive's employment with the Company is terminated by the Company or the Executive terminates his employment for Good Reason prior to the date on which the Change in Control occurs, such termination of employment shall be deemed to be a termination of employment after a Change in Control for purposes of this Agreement, including, without limitation, this Section 3, if the Executive shall die while still an employee have reasonably demonstrated that such termination of employment (i) was at the Companyrequest of a third party who has taken steps reasonably calculated to effect a Change in Control, the amount specified or (ii) otherwise arose in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all connection with or in anticipation of the benefits specified a Change in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory to the CompanyControl.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, Company and (b) within two (2) years after during the date of such Change in Control CIC Protection Period there occurs: (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment Termination of Employment by the Company without Cause, or (ii) there is a Executive’s Constructive Termination, then, subject to Executive continuing to fulfill Executive’s obligations under Sections 5.3(b), 5.5 and 11 hereof:
(a) the The Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Short Term Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.02.0; such payment to be made in a lump sum six months on or before the 45th calendar day following the Date of Termination; provided, that no such payment will be made unless Executive has executed and delivered to the Company the release and covenant described in Section 5.5 below, and any period during which Executive may revoke or rescind such release and covenant has expired before that 45th day; and provided further, that if, as of the Date of Termination: (x) any payment due under this Section 5.3 is reasonably deemed by the Company to be “deferred compensation” (as defined in the 409A Regulations), (y) any portion of the payment due under this Section 5.3 would exceed the sum of the applicable limited separation pay exclusions as determined pursuant to the 409A Regulations and (z) Executive is treated as a specified employee (as defined in the 409A Regulations), then payment of such excess amount shall be delayed until the six-month anniversary of the Date of Termination (or the date of Executive’s death, if earlier). If Executive continues to perform any services (as an employee or otherwise) for the Company or a Subsidiary of the Company after the Date of Termination, such six-month period shall be measured from the date of Executive’s “separation from service” as defined pursuant to the 409A Regulations;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event If a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after and Executive dies during the date of such Change in Control the Executive shall die CIC Protection Period while still an employee of the Company, the amount specified in Subsection 3(aSection 5.3(a) shall be paid by the Company to such Executive’s estate, ; and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;; and
(ed) Notwithstanding anything stated in any other agreement between the Company and Executive that may be construed to the contrary, the Company shall cause any unvested portion of Executive’s restricted stock units, performance awards and any other equity awards granted to Executive under the Company’s obligations 2010 Stock Incentive Plan, as amended, to provide the payments and benefits immediately vest in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory full to the Companyextent not already vested. Any performance awards will vest at the target level.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after from the date of such Change in Control (i) the Company, Company shall terminate the Executive's employment for any or no reason (except in for the case death of the Executive’s death, terminates the Executive’s employment without Cause, ) or (ii) there is a Constructive Terminationthe Executive shall elect to terminate his employment for any or no reason, then
(aA) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at on the time Notice Date of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; all such payments to shall be made in a lump sum on or before the fifth day following the Date of Termination;
(bB) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (Ai) the sum of (ia) the Executive’s 's annual base salary in effect as of the Date of Termination and (iib) 60% of the maximum target or goal amount that otherwise would be earned under the Senior Management Incentive Plan and any other executive compensation plan in which the Executive is then participating for the year in which such Date of Termination occurs (assuming all such amounts under such plan had been earned) and (Bii) the number 1.02.99; such payment to shall be made in a lump sum six months on or before the fifth calendar day following the Date of Termination;
(cC) for a period of not less than twenty-four (24) months following the Executive's Date of Termination, the Company will reimburse the Executive shallfor all reasonable expenses incurred by him (but not including any arrangement by which the Executive prepays expenses for a period of greater than thirty (30) days) in seeking employment with another employer including the fees of a reputable outplacement organization;
(D) if the payment provided under paragraph (B) above (the "Contract Payment") or any other portion of the Total Payments (as defined below) will be subject to the tax (the "Excise Tax") imposed by Section 4999 of the Code, effective the Company shall pay the Executive on or before the fifth calendar day following the Date of Termination, an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Contract Payment and such other Total Payments and any federal and state and local income tax and Excise Tax upon the payment provided for by this paragraph, shall be deemed a “Participant” equal to the Contract Payment and vested in all respects under such other Total Payments. For purposes of determining whether any of the Company’s Senior Executive payments will be subject to the Excise Tax and the amount of such Excise Tax, (i) any other payments or Senior Management Retirement Benefits Policy, regardless of whether benefits received or to be received by the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event connection with a Change in Control of the Company shall have occurred while or the Executive is an employee Executive's termination of employment, whether payable pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, its successors, any person whose actions result in a Change in Control of the Company or any corporation affiliated (or which, as a result of the completion of a transaction causing a Change in Control, will become affiliated) with the Company within the meaning of Section 1504 of the Code (together with the Contract Payment, the "Total Payments") shall be treated as "parachute payments" within the meaning of Section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of Section 280G(b)(1) shall be treated as subject to the Excise Tax, unless in the opinion of tax counsel selected by the Company's independent auditors and acceptable to the Executive the Total Payments (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4) of the Code either in their entirety or in excess of the base amount within the meaning of Section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (a) the total amount of the Total Payments or (b) the amount of excess parachute payments within the meaning of Section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company's independent auditors in accordance with the principles of Sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive's residence on the Date of Termination, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of termination of the Executive's employment, the Executive shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction (plus the portion of the Gross-Up Payment attributable to the Excise Tax and federal and state and local income tax imposed on the Gross-Up Payment being repaid by the Executive of such repayment results in a reduction in Excise Tax and/or a federal and state and local income tax deduction) plus interest on the amount of such repayment at the rate provided in Section 1274(d) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive's employment (including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall made an additional gross-up payment in respect of such excess at the time that the amount of such excess is finally determined; and, within
(E) for two (2) years after following the date Executive's Date of Termination, the Company shall maintain in full force and effect for the continued benefit of the Executive, all employee welfare benefit plans and perquisite programs in which the Executive was entitled to participate immediately prior to the Date of Termination (provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs). In the event that the Executive's participation in any such plan or program is barred, the Company shall, at its sole cost and expense, arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred. Anything in this Agreement to the contrary notwithstanding, if a Change in Control occurs and the Executive's employment with the Company is terminated by the Company or the Executive terminates his employment for any or no reason prior to the date on which the Change in Control occurs, such termination of employment shall be deemed to be a termination of employment after a Change in Control for purposes of this Agreement, including, without limitation, this Section 3, if the Executive shall die while still an employee have reasonably demonstrated that such termination of employment (i) was at the Companyrequest of a third party who has taken steps reasonably calculated to effect a Change in Control, the amount specified or (ii) otherwise arose in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all connection with or in anticipation of the benefits specified a Change in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory to the CompanyControl.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment without Cause, or (ii) there is a Constructive Termination, then
(a) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.0; such payment to be made in a lump sum six months following the Date of Termination;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory to the Company.; and
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment without Cause, or (ii) there is a Constructive Termination, then
(a) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.0; such payment to be made in a lump sum six months following the Date of Termination;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx sue in form foxx and content satisfactory to the Company.; and
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment without Cause, or (ii) there is a Constructive Termination, then
(a) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;; EXHIBIT 10.2
(b) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.02.0; such payment to be made in a lump sum six months following the Date of Termination;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx in form and content satisfactory to the Company.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control Control, there occurs: (i) the Company, except in the case of the Executive’s 's death, terminates Executive's Termination of Employment by the ExecutiveCompany without Cause (which “Cause” for the sake of clarity shall not include termination occasioned by ill-advised good faith judgment or negligence in connection with the Company’s employment without Causebusiness), or (ii) there is a Executive's Constructive Termination, then:
(a) the The Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in In lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s 's annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.0; , such payment to be made in a lump sum six months on or before the 45th calendar day following the Date of Termination; provided, that no such payment will be made unless Executive has executed and delivered to the Company the release and covenant described in Section 3(d) below, and any period during which Executive may revoke or rescind such release and covenant has expired before that 45th day; and provided further, that if, as of the Date of Termination: (x) any payment due under this Section 3 is reasonably deemed by the Company to be "deferred compensation" (as defined in the 409A Regulations), (y) any portion of the payment due under this Section 3(b) would exceed the sum of the applicable limited separation pay exclusions as determined pursuant to the 409A Regulations, and (z) Executive is treated as a specified employee (as defined in the 409A Regulations), then payment of such excess amount shall be delayed until the six-month anniversary of the Date of Termination (or the date of Executive's death, if earlier). If Executive continues to perform any services (as an employee or otherwise) for the Company or a Subsidiary of the Company, as defined in Section 5(a), after the Date of Termination, such six-month period shall be measured from the date of Executive's "separation from service" as defined pursuant to the 409A Regulations;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event If a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection Section 3(a) shall be paid by the Company to such Executive’s 's estate, ; and such deceased Executive’s 's spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s 's Senior Executive officer or Senior Management Retirement Benefits Policy (as applicable to Executive) as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(ed) the The Company’s 's obligations to provide the payments and benefits in this Section 2 3 are conditioned on Executive signing a general release of legal claims and covenant not to xxx xxx, in the form and content satisfactory attached as Exhibit A to this Agreement, with such changes as may be reasonably required to reflect changes in applicable law or circumstances subsequent to the date first above written; and the Company shall deliver such release and covenant to Executive within 10 calendar days after the earlier of (i) the Date of Termination or (ii) the Company's receipt of a Notice of Termination asserting a Constructive Termination;
(e) The Company shall deduct, from any payment made under this Agreement, any Federal or state taxes required by law to be withheld from such payment.
Appears in 1 contract
Severance Compensation upon a Change in Control and Termination of Employment. If (a) a Change in Control of the Company shall have occurred while the Executive is an employee of the Company, and (b) within two (2) years after the date of such Change in Control (i) the Company, except in the case of the Executive’s death, terminates the Executive’s employment without Cause, or (ii) there is a Constructive Termination, then
(a) the Company shall pay the Executive any earned and accrued but unpaid installment of base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and all other unpaid amounts to which the Executive is entitled as of the Date of Termination under any compensation plan or program of the Company, including, without limitation, all accrued vacation time; such payments to be made in a lump sum on or before the fifth day following the Date of Termination;
(b) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination, the Company shall pay to the Executive an amount equal to the product of (A) the sum of (i) the Executive’s annual base salary in effect as of the Date of Termination and (ii) 60% of the maximum target or goal amount under the Management Incentive Plan for the year in which such Date of Termination occurs and (B) the number 1.0[2.0 for Mxxxxxx, Ixxxxxxxx and Rxxxxx, 1.0 for all others]; such payment to be made in a lump sum six months on or before the fifth calendar day following the Date of Termination;
(c) the Executive shall, effective on the Date of Termination, be deemed a “Participant” and vested in all respects under the Company’s Senior Executive or Senior Management Retirement Benefits Policy, regardless of whether the Executive otherwise then satisfies the requirements for eligibility under such Policy; provided that the benefits specified under this Subsection 3(c) shall (A) not become payable until when the Executive reaches age 65 unless such benefits are payable at Executive’s age at that time under the terms of the Policy, and (B) not be provided to the extent such benefits are provided to the Executive by another employer at no cost to the Executive;
(d) in the event a Change in Control of the Company shall have occurred while the Executive is an employee of the Company and, within two (2) years after the date of such Change in Control the Executive shall die while still an employee of the Company, the amount specified in Subsection 3(a) shall be paid by the Company to such Executive’s estate, and such deceased Executive’s spouse and eligible dependents shall be entitled to all of the benefits specified in the Company’s Senior Executive or Senior Management Retirement Benefits Policy as if such deceased Executive had delivered a Notice of Termination to the Company immediately prior to such death;
(e) the Company’s obligations to provide the payments and benefits in this Section 2 are conditioned on Executive signing a general release of legal claims and covenant not to xxx sxx in form and content satisfactory to the Company.; and
(f) the Company and Executive hereby agree to cooperate in good faith in preparing and executing any written amendments to this Agreement (such as restrictions on the timing of severance pay or deferred compensation payments) that are reasonably necessary to timely comply with Code Section 409A, to the extent that any compensation, severance pay or other benefits payable to Executive under this Agreement are deemed to constitute a nonqualified deferred compensation plan under Code Section 409A. All parties acknowledge that such any amendment must be completed by the end of 2007, pursuant to guidance yet to be issued by the Internal Revenue Service, unless the Internal Revenue Service extends the time for such amendments to a later date. Executive also acknowledges that, if any such amendments are not completed before the earlier of December 31, 2007, or the date any such payments are due, a 20% tax penalty may be assessed against Executive under Code Section 409A.
Appears in 1 contract
