Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply: (a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall: (i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 -------------------------------------------------------------------------------- (ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will: (A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and (B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof; (iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and (iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment: (A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and (B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes. (b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65. (c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 5 contracts
Samples: Change of Control Agreement (Sealy Corp), Change of Control Agreement (Sealy Corp), Change of Control Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, following the Employee's employment is terminated by occurrence of a Change in Control, the Company terminates the Executive’s employment during the Severance Period other than for Cause pursuant to Section 3(a)(i), 3(a)(ii) or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof3(a)(iii), or if the Executive terminates Executive’s employment pursuant to Section 3(b) (any such annual base salary has decreased termination, a “Triggering Termination”), provided that such Triggering Termination constitutes a “separation from service” as defined in Section 409A, the Company will pay to the Executive the amounts described in Annex A within five business days after the Termination Date (subject to the provisions of Section 4(d) of this Agreement) and will continue to provide to the Executive the benefits described in Annex A for the periods described therein.
(b) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the “prime rate” as set forth from time to time during the one year relevant period ending in The Wall Street Journal “Money Rates” column, plus 200 basis points, compounded monthly, or, if less, the maximum rate legally allowed. Such interest will be payable as it accrues on the Employee's termination of employment, at the highest demand. Any change in such prime rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending will be effective on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; andsuch change.
(Bc) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied Unless otherwise expressly provided by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (applicable plan, program or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payableagreement, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date occurrence of the Employee's termination of employment:
(A) a Change in Control, the Company will pay in cash to the total Executive a lump sum amount equal to the sum of (i) any unpaid Incentive Pay that has been earned, accrued, allocated or awarded to the Executive for any performance period that by its terms as in effect prior to a Triggering Termination has been completed (any such period, a “Completed Performance Period”) (regardless of whether payment of such compensation would otherwise be contingent on the continuing performance of services by the Executive) and (ii) the Pro Rata Portion of the Employee's annual base salary payments described Incentive Pay Target in Subsection 5(a)(ieffect for any subsequent performance period. For this purpose, “Pro Rata Portion” means (x) in a single sum within thirty (30) the number of days from and including the first day immediately following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition immediately preceding Completed Performance Period to receipt and including the Termination Date, divided by (y) the total number of a bonus thereunder days in such subsequent performance period. Such payments will be made at the earlier of (x) the date prescribed for such year except in payment pursuant to the cases of deathapplicable plan, disability program or retirement at or agreement and (y) within five business days after either age 62 with ten years of service or age 65the Termination Date, and will be payable and calculated disregarding any otherwise applicable vesting requirements.
(cd) Notwithstanding anything contained To the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided pursuant to this Agreement to during the contrary, other than Section 16 hereofsix-month period immediately following the Executive’s termination of employment shall instead be paid on the first business day after the date that is six months following the Executive’s termination of employment (or upon the Executive’s death, if earlier). In addition, for purposes of this Agreement, each amount to be paid or benefit to be provided shall be construed as a separate identified payment for purposes of Section 409A, and any payments described in Annex A that are due within the Employee breaches any of his obligations under “short term deferral period” as defined in Section 9 or 10 hereof, no further severance payments or other benefits will 409A shall not be payable to the Employee under this Section 5treated as deferred compensation unless applicable law requires otherwise.
Appears in 5 contracts
Samples: Change in Control Agreement (Abm Industries Inc /De/), Change in Control Agreement (Abm Industries Inc /De/), Change in Control Agreement (Abm Industries Inc /De/)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, before the Contract Expiration Date, Employee's ’s employment is terminated by the Company other than for Cause Subsidiary without cause or is terminated by the Employee for Good Reasongood reason, then, except as provided in Paragraph 12(b), 12(c), or 12(d), the Company shall cause to be paid and provided to Employee (i) base salary at the highest monthly rate payable to Employee during the Contract Period through the one year period commencing on last to occur of (x) the expiration of six months after the effective date of the Employee's termination of employment termination, and (the "Payment Term"y) the Company shall:
Contract Expiration Date (isuch last-to-occur date is hereinafter referred to as the “Severance Benefits Termination Date”) continue and a bonus award accrued for the year in which such termination occurs determined in accordance with the Company’s bonus plan as in effect immediately prior to pay the Employee's annual base salary Change in the then prevailing amount Control Date and at a level no less than the times specified target amount thereunder for the year in Subsection 3(a) hereof, or if which such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year periodoccurs; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
and (ii) continue the Employee's participation in following benefits for a period of twelve months following the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company willContract Expiration Date:
(A) pay the Employee a bonus coverage under the Bonus Plan for Company’s medical insurance plan, short-term disability plan, long-term disability plan, salary continuation arrangement, disability benefit arrangement, and executive life insurance benefit (provided that she became eligible to participate therein prior to the partial year period ending date her employment is terminated), each as in effect on the date of the Employee's termination of employment calculated Change in Control Date (or, if subsequently amended to increase benefits to Employee or her dependents, as so amended) and each as if the Employee Employee’s employment had continued to be employed for through the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employmentSeverance Benefits Termination Date; and
(B) thereafter, during coverage and service credit under the remainder of Salaried Plan and any Excess Benefit Plan maintained in connection with the Payment Term, a bonus Salaried Plan under which she is eligible to participate so that the aggregate benefits payable to or with respect to the Employee under the Salaried Plan and any such Excess Benefit Plan will be equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (aggregate benefits that would have been paid to or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses respect to Employee under the Bonus Salaried Plan are customarily payable, except that and any such Excess Benefit Plan if Employee’s employment had continued through the final bonus shall be payable with the final payment Severance Benefits Termination Date. If any of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will benefits to be provided for a six (6) month period commencing on under one or more of the date of plans, agreements, or arrangements specified above cannot be provided through that plan, agreement, or arrangement to Employee following termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereofher employment, at the Employee's request, submitted in writing to the Company within five shall cause the full equivalent of such benefits to Employee. For example, since it is not possible to provide additional service credit directly through the Salaried Plan, if Employee becomes entitled to an additional 18 months of service credit under the Salaried Plan pursuant to (5B) business days after the date of the Employee's termination of employment:
(A) above, the Company will pay be required to cause payment to Employee, from its general assets or those of its Subsidiary, on each date on which Employee receives a payment from the Salaried Plan, a supplemental payment equal to the amount by which that particular payment under the Salaried Plan would have been increased if Employee’s total of service credit under the Employee's annual base salary Salaried Plan were 18 months greater than is actually the case. In addition, if in these circumstances any payments described in Subsection 5(a)(i) in a single sum within thirty (30) days become due under the Salaried Plan with respect to Employee following her death, the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan Company will be obligated to cause similar supplemental payments described in Subsection 5(a)(ii) shall with respect to Employee to be made at on the same time as dates on which payments are made with respect to Employee under the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesSalaried Plan.
(b) If Notwithstanding the Employee's employment hereunder terminates due foregoing provisions of Paragraph 12(a), the Company shall cause any benefit to which Employee becomes entitled pursuant to the Employee's deathprovisions of Paragraph 8 or 12(a) under the Salaried Plan or the Excess Benefit Plan including, disabilityin the event Employee is not fully vested under the provisions of either, the present value of any otherwise forfeitable benefit thereunder, to be paid in a single sum to Employee as soon as practicable, but not more than thirty days following her termination by of employment, with present value determination to be made based on actuarial factors for single sum payments set forth in the Salaried Pension Plan. Employee shall have no duty to mitigate the amount of any payment or benefit provided for in this Agreement.
(c) If during any period in which Employee is entitled to payments or benefits under Paragraph 12
(a) Employee materially and willfully breaches her agreement with respect to confidential information set forth in Paragraph 13 hereof and such breach directly causes the Company for Cause or termination by the Employee other than for Good ReasonSubsidiary substantial and demonstrable damage, then no further compensation or benefits the Company will be provided to relieved of its obligations under Paragraph 12(a) hereof as of the Employee by first day of the Company under this Agreement month immediately following the date of such termination material breach.
(d) If Employee dies on or before the Severance Benefits Termination Date or, with respect to benefits, the Contract Expiration Date, and immediately before her death she is entitled to payments or benefits under Paragraph 12(a), the Company will be relieved of employment other than payment of compensation earned its obligations under Paragraph 12(a) with respect to the date of termination of employment but not yet paid. As more fully base salary and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement bonus payments as of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last first day of the Company's taxable year month immediately following the month in which Employee dies and thereafter the Company will cause to be provided to Employee’s beneficiaries and dependents salary continuation payments, benefits under any Excess Benefits Plan (as supplemented by item (B) of Paragraph 12(a)), and continuing medical and dental benefits to the same extent (subject to reduction for payments or benefits from a condition to receipt of a bonus thereunder for such year except new employer under Paragraph 12(c)) as if Employee’s death had occurred while Employee was in the cases active employ of death, disability or retirement at or after either age 62 with ten years of service or age 65the Subsidiary.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 3 contracts
Samples: Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/), Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/), Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/)
Severance Compensation. If the Employee's employment is terminated terminated, ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(ii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(ii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee's obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 3 contracts
Samples: Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(f) hereof, determined without regard to Subsection 1(f)(ii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(f)(ii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (’s annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee’s termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of comparable size corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's ’s request, submitted in writing to the Company within five (5) business days after the date of the Employee's ’s termination of employment:
(A) the Company will pay the total of the Employee's ’s annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's ’s termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's ’s payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's ’s Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 61 with ten thirteen years of service or age 65service.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 3 contracts
Samples: Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(f) hereof, (such remaining Employment Term is hereinafter referred to as the date of the Employee's termination of employment (the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a prorated bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee’s termination of employment, at the highest level in effect during such one year period; and
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of comparable size corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service with the Company or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 2 contracts
Samples: Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated terminated, ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(iii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(iii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as -------------------------------------------------------------------------------- Page 7 -------------------------------------------------------------------------------- provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii-------------------------------------------------------------------------------- Page 8 --------------------------------------------------------------------------------
5(a) (ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his the Employee's obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 2 contracts
Samples: Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, before the Contract Expiration Date, Employee's ’s employment is terminated by the Company other than for Cause without cause or is terminated by the Employee for Good Reasongood reason, then, except as provided in Paragraph 12(b), 12(c), or 12(d), the Company shall pay and provide to Employee the following compensation and benefits through the one year period commencing on last to occur of (x) the expiration of twenty-four months after the effective date of the Employee's termination of employment termination, and (the "Payment Term"y) the Company shall:Contract Expiration Date (such last-to-occur date is hereinafter referred to as the “Severance Benefits Termination Date”):
(i) continue to pay the Employee's annual base salary in the then prevailing amount Base Salary and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, Annual Bonus at the highest rate payable to Employee during the Contract Period, to be paid at the times provided in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------Paragraph 5 hereof;
(ii) continue in lieu of the Employee's participation in opportunity to receive stock option grants during the Bonus Plan as provided in Subsection 3(b) hereof provided that period from the effective date of termination through the Severance Benefits Termination Date, the Company will:
will pay to Employee an amount in cash equal to the product of (A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date aggregate value of the Employee's termination of employment calculated as if the stock options granted to Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied with Respect to the Employee's annual base salary payable fiscal year ended immediately prior to the Change in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
Control and (B) thereaftera fraction, during the remainder numerator of which is the number of days from the effective date of termination through the Severance Benefits Termination Date and the denominator of which is 365; for this purpose, the value of the Payment Term, a bonus equal to stock options will be determined using the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereofBlack-Scholes option price model;
(iii) pay for executive outplacement services for coverage under the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's positionCompany’s medical, dental, insurance, short-term disability, long-term disability plans, and other Plans, as listed on Exhibit A, Items 7 through 14 (provided that such outplacement services will be provided for a six (6) month period commencing he became eligible to participate therein prior to the date his employment is terminated), each as in effect on the date of termination of Change in Control Date (or, if subsequently amended to increase benefits to Employee or his dependents, as so amended) and each as if Employee’s employment regardless of had continued through the Payment TermSeverance Benefits Termination Date; and
(iv) In lieu coverage and service credit under the Salaried Plan and the Excess Benefit Plans maintained in connection with the Salaried Plan under which he is eligible to participate so that the aggregate benefits payable to or with respect to the Employee under the Salaried Plan and the Excess Benefit Plan will be equal to the aggregate benefits that would have been paid to or with respect to Employee under the Salaried Plan and the Excess Benefit Plans if Employee’s employment had continued through the Severance Benefits Termination Date. If any of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereofbenefits to be provided under the Company’s Plans cannot be provided through that Plan to Employee following termination of his employment, at the Employee's request, submitted in writing to the Company within five shall directly provide the full equivalent of such benefits to Employee. For example, since it is not possible to provide additional service credit directly through the Salaried Plan, if Employee becomes entitled to an additional 18 months of service credit under the Salaried plan pursuant to (5iv) business days after the date of the Employee's termination of employment:
(A) above, the Company will be required to pay to Employee, from its general assets, on each date on which Employee receives a payment from the Salaried Plan, a supplemental payment equal to the amount by which that particular payment under the Salaried Plan would have been increased if Employee’s total service credit under the Salaried Plan were 18 months greater than is actually the case by reason of this Agreement. In addition, if in these circumstances any payments become due under the Salaried Plan with respect to Employee following his death, the Company will be obligated to make similar supplemental payments with respect to Employee on the dates on which payments are made with respect to Employee under the Salaried Plan. Furthermore, the provisions of this Agreement shall not affect the validity or enforceability of any other agreement between the Company and Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following , and the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) benefits provided under this Agreement shall be made at the same time as the additive to any other benefits promised to Employee under such other agreement. Moreover, this Agreement shall not operate to negate any other assurances provided to Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If Employee becomes entitled to compensation and benefits pursuant to Paragraph 12(a) he shall use reasonable efforts to seek other employment, provided, however, that he shall not be required to accept a position of less importance and dignity or of substantially different character than of his position with the Company or a position that would require Employee to engage in activity in violation of Employee's employment hereunder terminates due ’s agreement with respect to noncompetition set forth in Paragraph 14 hereof nor shall he be required to accept a position outside the greater Cleveland area. The Company’s obligations under item (i) and (ii) of Paragraph 12(a) will be offset by payments and benefits received by Employee from another employer to the following extent:
(i) The Company’s obligation to pay any particular installment of base salary following Employee's death’s termination will be offset, disabilityon a dollar for dollar basis, termination by any cash compensation received by Employee from another employer before the date on which the installment of base salary is payable by the Company.
(ii) To the extent that Employee is provided medical, dental, or short-term or long-term disability income protection benefits by another employer during any period, the Company will be relieved of its obligation to provide such benefits to Employee. For example, if a new employer provides Employee with a medical benefits plan that pays $500.00 for Cause or termination a specific claim made by Employee and the Employee other than Company’s medical insurance plan would have paid $750.00 for Good Reasonthat claim, then the Company will be obligated to pay Employee $250.00 with respect to that claim. Other than as provided in this Paragraph 12(b) Employee shall have no further compensation duty to mitigate the amount of any payment or benefit provided for in this Agreement.
(c) If during any period in which Employee is entitled to payments or benefits will be provided to the Employee by from the Company under this Agreement Paragraph 12(a):
(i) Employee materially and willfully breaches his agreement with respect to confidential information set forth in Paragraph 13 hereof and such breach directly causes the Company substantial and demonstrable damage; or
(ii) Employee materially and wilfully breaches his agreement with respect to noncompetition set forth in Paragraph 14 hereof and such breach directly causes the Company substantial and demonstrable damage; then the Company will be relieved of its obligations under paragraph 12(a) hereof as of the first day of the month immediately following the date of such termination material breach.
(d) If Employee dies on or before the Severance Benefits Termination Date and immediately before his death he is entitled to payments or benefits from the Company under Paragraph 12(a), the Company will be relieved of employment other than payment its obligations under item (i) of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(bParagraph 12(a) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement as of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last first day of the Company's taxable year month immediately following the month in which Employee dies and thereafter the Company will provide to Employee’s beneficiaries and dependents salary continuation payments, benefits under the Excess Benefits Plan (as supplemented by item (iii) of Paragraph 12(a), and continuing medical and dental benefits to the same extent (subject to reduction for payments or benefits from a condition to receipt of a bonus thereunder for such year except new employer under paragraph 12(b) as if Employee’s death had occurred while Employee was in the cases active employ of death, disability or retirement at or after either age 62 with ten years of service or age 65the Company.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 2 contracts
Samples: Employment Agreement (Nordson Corp), Employment Agreement (Nordson Corp)
Severance Compensation. If the Employee's employment is terminated terminated, ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(iii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(iii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as -------------------------------------------------------------------------------- Page 7 -------------------------------------------------------------------------------- provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii-------------------------------------------------------------------------------- Page 8 --------------------------------------------------------------------------------
(a) (ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his the Employee's obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 2 contracts
Samples: Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, before the Contract Expiration Date, Employee's ’s employment is terminated by the Company other than for Cause Subsidiary without cause or is terminated by the Employee for Good Reasongood reason, then, except as provided in Paragraph 12(b), 12(c), or 12(d), the Company shall cause to be paid and provided to Employee (i) base salary at the highest monthly rate payable to Employee during the Contract Period through the one year period commencing on last to occur of (x) the expiration of six months after the effective date of the Employee's termination of employment termination, and (the "Payment Term"y) the Company shall:
Contract Expiration Date (isuch last-to-occur date is hereinafter referred to as the “Severance Benefits Termination Date”) continue and a bonus award accrued for the year in which such termination occurs determined in accordance with the Company’s bonus plan as in effect immediately prior to pay the Employee's annual base salary Change in the then prevailing amount Control Date and at a level no less than the times specified target amount thereunder for the year in Subsection 3(a) hereof, or if which such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year periodoccurs; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
and (ii) continue the Employee's participation in following benefits for a period of twelve months following the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company willContract Expiration Date:
(A) pay the Employee a bonus coverage under the Bonus Plan for Company’s medical insurance plan, short-term disability plan, long-term disability plan, salary continuation arrangement, disability benefit arrangement, and executive life insurance benefit (provided that he became eligible to participate therein prior to the partial year period ending date his employment is terminated), each as in effect on the date of the Employee's termination of employment calculated Change in Control Date (or, if subsequently amended to increase benefits to Employee or his dependents, as so amended) and each as if the Employee Employee’s employment had continued to be employed for through the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employmentSeverance Benefits Termination Date; and
(B) thereafter, during coverage and service credit under the remainder of Salaried Plan and any Excess Benefit Plan maintained in connection with the Payment Term, a bonus Salaried Plan under which he is eligible to participate so that the aggregate benefits payable to or with respect to the Employee under the Salaried Plan and any such Excess Benefit Plan will be equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (aggregate benefits that would have been paid to or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses respect to Employee under the Bonus Salaried Plan are customarily payable, except that and any such Excess Benefit Plan if Employee’s employment had continued through the final bonus shall be payable with the final payment Severance Benefits Termination Date. If any of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will benefits to be provided for a six (6) month period commencing on under one or more of the date of plans, agreements, or arrangements specified above cannot be provided through that plan, agreement, or arrangement to Employee following termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereofhis employment, at the Employee's request, submitted in writing to the Company within five shall cause the full equivalent of such benefits to Employee. For example, since it is not possible to provide additional service credit directly through the Salaried Plan, if Employee becomes entitled to an additional 18 months of service credit under the Salaried Plan pursuant to (5B) business days after the date of the Employee's termination of employment:
(A) above, the Company will pay be required to cause payment to Employee, from its general assets or those of its Subsidiary, on each date on which Employee receives a payment from the Salaried Plan, a supplemental payment equal to the amount by which that particular payment under the Salaried Plan would have been increased if Employee’s total of service credit under the Employee's annual base salary Salaried Plan were 18 months greater than is actually the case. In addition, if in these circumstances any payments described in Subsection 5(a)(i) in a single sum within thirty (30) days become due under the Salaried Plan with respect to Employee following his death, the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan Company will be obligated to cause similar supplemental payments described in Subsection 5(a)(ii) shall with respect to Employee to be made at on the same time as dates on which payments are made with respect to Employee under the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesSalaried Plan.
(b) If Notwithstanding the Employee's employment hereunder terminates due foregoing provisions of Paragraph 12(a), the Company shall cause any benefit to which Employee becomes entitled pursuant to the Employee's deathprovisions of Paragraph 8 or 12(a) under the Salaried Plan or the Excess Benefit Plan including, disabilityin the event Employee is not fully vested under the provisions of either, the present value of any otherwise forfeitable benefit thereunder, to be paid in a single sum to Employee as soon as practicable, but not more than thirty days following his termination by of employment, with present value determination to be made based on actuarial factors for single sum payments set forth in the Salaried Pension Plan. Employee shall have no duty to mitigate the amount of any payment or benefit provided for in this Agreement.
(c) If during any period in which Employee is entitled to payments or benefits under Paragraph 12(a) Employee materially and willfully breaches his agreement with respect to confidential information set forth in Paragraph 13 hereof and such breach directly causes the Company for Cause or termination by the Employee other than for Good ReasonSubsidiary substantial and demonstrable damage, then no further compensation or benefits the Company will be provided to relieved of its obligations under Paragraph 12(a) hereof as of the Employee by first day of the Company under this Agreement month immediately following the date of such termination material breach.
(d) If Employee dies on or before the Severance Benefits Termination Date or, with respect to benefits, the Contract Expiration Date, and immediately before his death he is entitled to payments or benefits under Paragraph 12(a), the Company will be relieved of employment other than payment of compensation earned its obligations under Paragraph 12(a) with respect to the date of termination of employment but not yet paid. As more fully base salary and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement bonus payments as of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last first day of the Company's taxable year month immediately following the month in which Employee dies and thereafter the Company will cause to be provided to Employee’s beneficiaries and dependents salary continuation payments, benefits under any Excess Benefits Plan (as supplemented by item (B) of Paragraph 12(a)), and continuing medical and dental benefits to the same extent (subject to reduction for payments or benefits from a condition to receipt of a bonus thereunder for such year except new employer under Paragraph 12(c)) as if Employee’s death had occurred while Employee was in the cases active employ of death, disability or retirement at or after either age 62 with ten years of service or age 65the Subsidiary.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 2 contracts
Samples: Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/), Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, before the Contract Expiration Date, Employee's employment is terminated by the Company other than for Cause Subsidiary without cause or is terminated by the Employee for Good Reasongood reason, then, except as provided in Paragraph 12(b), 12(c), or 12(d), the Company shall cause to be paid and provided to Employee (i) base salary at the highest monthly rate payable to Employee during the Contract Period through the one year period commencing on last to occur of (x) the expiration of six months after the effective date of the Employee's termination of employment termination, and (y) the Contract Expiration Date (such last-to-occur date is hereinafter referred to as the "Payment TermSeverance Benefits Termination Date") and a bonus award accrued for the Company shall:
(i) continue year in which such termination occurs determined in accordance with the Company's bonus plan as in effect immediately prior to pay the Employee's annual base salary Change in the then prevailing amount Control Date and at a level no less than the times specified target amount thereunder for the year in Subsection 3(a) hereof, or if which such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year periodoccurs; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
and (ii) continue the Employee's participation in following benefits for a period of twelve months following the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company willContract Expiration Date:
(A) pay the Employee a bonus coverage under the Bonus Plan for Company's medical insurance plan, short-term disability plan, long-term disability plan, salary continuation arrangement, disability benefit arrangement, and executive life insurance benefit (provided that [he][she] became eligible to participate therein prior to the partial year period ending date [his][her] employment is terminated), each as in effect on the date of the Change in Control Date (or, if subsequently amended to increase benefits to Employee or [his][her] dependents, as so amended) and each as if Employee's termination of employment calculated as if the Employee had continued to be employed for through the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employmentSeverance Benefits Termination Date; and
(B) thereafter, during coverage and service credit under the remainder of Salaried Plan and any Excess Benefit Plan maintained in connection with the Payment Term, a bonus Salaried Plan under which [he][she] is eligible to participate so that the aggregate benefits payable to or with respect to the Employee under the Salaried Plan and any such Excess Benefit Plan will be equal to the aggregate benefits that would have been paid to or with respect to Employee under the Salaried Plan and any such Excess Benefit Plan if Employee's Target Annual Bonus Percentageemployment had continued through the Severance Benefits Termination Date. If any of the benefits to be provided under one or more of the plans, multiplied by agreements, or arrangements specified above cannot be provided through that plan, agreement, or arrangement to Employee following termination of [his][her] employment, the Company shall cause the full equivalent of such benefits to Employee's annual base salary in . For example, since it is not possible to provide additional service credit directly through the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses Salaried Plan, if Employee becomes entitled to an additional 18 months of service credit under the Bonus Salaried Plan are customarily payablepursuant to (B) above, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay be required to cause payment to Employee, from its general assets or those of its Subsidiary, on each date on which Employee receives a payment from the total of Salaried Plan, a supplemental payment equal to the amount by which that particular payment under the Salaried Plan would have been increased if Employee's annual base salary total service credit under the Salaried Plan were 18 months greater than is actually the case. In addition, if in these circumstances any payments described in Subsection 5(a)(i) in a single sum within thirty (30) days become due under the Salaried Plan with respect to Employee following [his][her] death, the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan Company will be obligated to cause similar supplemental payments described in Subsection 5(a)(ii) shall with respect to Employee to be made at on the same time as dates on which payments are made with respect to Employee under the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesSalaried Plan.
(b) If Notwithstanding the Employee's employment hereunder terminates due foregoing provisions of Paragraph 12(a), the Company shall cause any benefit to which Employee becomes entitled pursuant to the Employee's deathprovisions of Paragraph 8 or 12(a) under the Salaried Plan or the Excess Benefit Plan including, disabilityin the event Employee is not fully vested under the provisions of either, the present value of any otherwise forfeitable benefit thereunder, to be paid in a single sum to Employee as soon as practicable, but not more than thirty days following [his][her] termination by of employment, with present value determination to be made based on actuarial factors for single sum payments set forth in the Salaried Pension Plan. Employee shall have no duty to mitigate the amount of any payment or benefit provided for in this Agreement.
(c) If during any period in which Employee is entitled to payments or benefits under Paragraph 12
(a) Employee materially and willfully breaches [his][her] agreement with respect to confidential information set forth in Paragraph 13 hereof and such breach directly causes the Company for Cause or termination by the Employee other than for Good ReasonSubsidiary substantial and demonstrable damage, then no further compensation or benefits the Company will be provided to relieved of its obligations under Paragraph 12(a) hereof as of the Employee by first day of the Company under this Agreement month immediately following the date of such termination material breach.
(d) If Employee dies on or before the Severance Benefits Termination Date or, with respect to benefits, the Contract Expiration Date, and immediately before [his][her] death [he][she] is entitled to payments or benefits under Paragraph 12(a), the Company will be relieved of employment other than payment of compensation earned its obligations under Paragraph 12
(a) with respect to the date of termination of employment but not yet paid. As more fully base salary and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement bonus payments as of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last first day of the Companymonth immediately following the month in which Employee dies and thereafter the Company will cause to be provided to Employee's taxable year beneficiaries and dependents salary continuation payments, benefits under any Excess Benefits Plan (as supplemented by item (B) of Paragraph 12(a)), and continuing medical and dental benefits to the same extent (subject to reduction for payments or benefits from a condition to receipt of a bonus thereunder for such year except new employer under Paragraph 12(c)) as if Employee's death had occurred while Employee was in the cases active employ of death, disability or retirement at or after either age 62 with ten years of service or age 65the Subsidiary.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 2 contracts
Samples: Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/), Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/)
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(f) hereof, determined without regard to Subsection 1(f)(ii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(f)(ii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (’s annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee’s termination of employment, at the highest level in effect during such one year period; and
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of comparable size corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service with the Company or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 2 contracts
Samples: Employment Agreement (Sealy Corp), Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's your employment is terminated ---------------------- during either by you with Good Reason within 12 months following a Protected PeriodChange of Control, or by the Company without Cause within 3 months preceding or within 12 months following severance provisions will applya Change of Control, subject to your executing and delivering to the Company, and not revoking, a release of claims in a form acceptable to the Company (the “Release”) within the 30-day period following your termination of employment:
(a) If the Employee's employment is terminated Company will pay you severance in an amount equal to 12 months of your then current annual base salary, plus a pro-rata share of your target annual cash bonus for the calendar year in which the termination occurs (based on the number of calendar days elapsed prior to the effective date of such termination), payable in equal installments over a period of 12 months (the “Severance Period”) in accordance with the Company’s payroll practices, commencing on your termination of employment;
(b) if you have been continuously employed by the Company other for less than for Cause or is terminated one year as of the date your employment terminates, the vesting schedule of any equity awards of the Company held by you shall automatically be amended to state that all of the options subject to such equity award(s) scheduled to vest within 12 months of the date of your termination shall immediately accelerate and become fully vested, provided that with respect to any such awards intended to constitute “qualified performance based compensation” under Section 162(m) of the Code, whether a Change of Control has occurred shall be determined without regard to clause (iv) of the definition of Change of Control below;
(c) if you have been continuously employed by the Employee Company for Good Reason, then, through the at least one year as of the date your employment terminates, all of the outstanding unvested equity awards of the Company held by you shall become fully vested and, if applicable, exercisable as of the date of your termination, provided that with respect to any such awards intended to constitute “qualified performance based compensation” under Section 162(m) of the Code, whether a Change of Control has occurred shall be determined without regard to clause (iv) of the definition of Change of Control below; and
(d) If you timely elect continued group medical and dental insurance coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), the Company will reimburse you for a portion of the applicable premiums, based on the then-current cost-sharing rates for active employees, for you and your eligible dependents during the period commencing on the date of the Employee's your termination of employment (the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination earliest to occur of employment(a) the final day of the Severance Period, at (b) the highest rate date you and/or your eligible dependents are no longer eligible for COBRA, and (c) the date you become eligible to receive medical insurance coverage from a subsequent employer (and you agree to notify the Company of such eligibility). Notwithstanding the foregoing, if the Company determines that it cannot provide such reimbursement of premiums to you without potentially violating applicable law, the Company shall in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue lieu thereof provide to you a taxable monthly payment in an amount equal to a portion of the Employee's participation applicable premiums, based on then-current cost-sharing rates for active employees, which payment will be made regardless of whether you elect COBRA continuation coverage and will commence in the Bonus Plan as provided month following the month in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's which your termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time occurs and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending end on the Employee's termination earliest to occur of employment; and
(Bx) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as Severance Period, (y) the date you and/or your eligible dependents are no longer eligible for COBRA, and (z) the date you become eligible to receive medical insurance coverage from a condition subsequent employer (and you agree to receipt notify the Company of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) eligibility). Notwithstanding anything contained in this Agreement herein to the contrary, other than in the event that any compensation or benefit that constitutes “nonqualified deferred compensation” within the meaning of Section 16 hereof409A (as defined below) becomes payable upon the occurrence of a Change of Control, if such compensation or benefit shall not be paid unless such Change of Control constitutes a “change in control event” within the Employee breaches any meaning of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.409A.
Appears in 2 contracts
Samples: Change of Control Severance Agreement (T2 Biosystems, Inc.), Change of Control Severance Agreement (T2 Biosystems, Inc.)
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(f) hereof, determined without regard to Subsection 1(f)(ii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(f)(ii) is hereinafter referred to as the date of the Employee's termination of employment (the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee’s termination of employment, at the highest level in effect during such one year period; and
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of comparable size corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service with the Company or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(iii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(iii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as -------------------------------------------------------------------------------- Page 7 -------------------------------------------------------------------------------- provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii-------------------------------------------------------------------------------- Page 8 --------------------------------------------------------------------------------
5(a) (ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his the Employee's obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(ii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(ii) is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 6558.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee's obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, following the Employeeoccurrence of a Change in Control, the Company terminates the Executive's employment is terminated by during the Company Severance Period other than for Cause pursuant to Section 3(a)(i), 3(a)(ii) or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof3(a)(iii), or if the Executive terminates his employment pursuant to Section 3(b) [OR SECTION 3(c)], the Company will pay to the Executive the amounts described in Annex A within five business days after the Termination Date and will continue to provide to the Executive the benefits described on Annex A for the periods described therein. Simultaneous with such annual base salary has decreased payment, the Executive shall deliver to the Company a properly executed release in substantially the form of Annex B and, in the event Executive revokes such release in accordance with the revocation procedure set forth in Annex B, the Executive will return any payment made pursuant to this Agreement to the Company and all benefits described in PARAGRAPH[S] (2) [AND (3)] of Annex A will cease, provided that if thereafter the Executive does so execute such Release and not thereafter revoke it as herein provided, he or she will again be entitled to such payments and benefits.
(b) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite "prime rate" as quoted from time to time during the one year relevant period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan Eastern Edition of THE WALL STREET JOURNAL, plus 2%. Such interest will be payable as provided it accrues on demand. Any change in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending such prime rate will be effective on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65change.
(c) Notwithstanding anything contained in any provision of this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his parties' respective rights and obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 4 and under Sections 5, 7, 8 and the last sentence of Section 9 will survive any termination or expiration of this Agreement or the termination of the Executive's employment following a Change in Control for any reason whatsoever.
Appears in 1 contract
Samples: Change in Control Severance Agreement (Nationsrent Inc)
Severance Compensation. If a) If, following the Employeeoccurrence of a Change in Control, the Company shall terminate the Executive's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company Period of Employment other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall:
(i) continue pursuant to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(aSection 4(a) hereof, or if the Executive shall terminate his employment pursuant to Section 4(b) hereof, the Company shall pay to the Executive the amount specified in Section 5(a)(i) hereof within ten business days after the date (the "Termination Date") that the Executive's employment is terminated (the effective date of which shall be the date of termination, or such annual base salary has decreased during other date that may be specified by the one year period ending on Executive if the Employee's termination is pursuant to Section 4(b) hereof):
i) In lieu of employmentany further payments to the Executive for periods subsequent to the Termination Date, but without affecting the rights of the Executive referred to in Section 5(b) hereof, a lump sum payment (the "Severance Payment") in an amount equal to the present value (using a discount rate required to be utilized for purposes of computations under Section 280G of the Code or any successor provision thereto, or if no such rate is so required to be used, a rate equal to the then-applicable interest rate prescribed by the Pension Benefit Guarantee Corporation for benefit valuations in connection with non-multiemployer pension plan terminations assuming the immediate commencement of benefit payments (the "Discount Rate")) of the sum of (A) the aggregate Base Pay (at the highest rate in effect during such one the Term prior to the Termination Date) for each remaining year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date or fraction of the Employee's Period of Employment which the Executive would have received had such termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreementor breach not occurred, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
plus (B) thereafterthe aggregate Incentive Pay (based upon the greatest amount of Incentive Pay paid or payable to the Executive for any year during the Term but prior to the year in which the Termination Date occurs), which the Executive would have received pursuant to this Agreement during the remainder of the Payment TermPeriod of Employment had his employment continued for the remainder of the Period of Employment; provided, a bonus however, that in no event will the "present value" (as determined under Section 280G of the Code or any successor provision thereto) of the amount otherwise payable hereunder, when added to the "present value" (as determined under Section 280G of the Code or any successor provision thereto) of any other "parachute payments" (as that term is defined in Section 280G of the Code (without regard to Section 280G(b)(2)(A)(ii) thereof) or any successor provision thereto) from the Company, exceed an amount (the "299% Amount") equal to 299% of the EmployeeExecutive's Target Annual Bonus Percentage"base amount" (as that term is defined in Section 280G of the Code or any successor provision thereto) and if the amount otherwise payable hereunder would exceed the 299% Amount, multiplied the Severance Payment shall be reduced to the extent necessary so that the aggregate present value determined in the previous clause does not exceed the 299% Amount.
ii) The determination of whether any amount otherwise payable under Section 5(a)(i) causes the 299% Amount to be exceeded shall be made, if requested by the Employee's annual base salary in Executive or the amount specified in Subsection 5(a)(i) payable during Company, by tax counsel selected by the year (or portion thereof) for which Company and reasonably acceptable to the bonus is being calculated; with Executive. The costs of obtaining such amounts being payable when bonuses under determination shall be borne by the Bonus Plan are customarily payable, except Company. The fact that the final bonus Executive shall be payable with have his right to the final payment Severance Payment reduced as a result of the annual base salary under Subsection 5(a)(iexistence of the limitations contained in this Section 5(a) hereof;
(iii) pay for executive outplacement services for shall not limit or otherwise affect any rights of the Executive to any Employee from a nationally recognized executive outplacement firm at a level consistent with Benefit, or other right arising other than pursuant to this Agreement. Without limiting the employeegenerality of the foregoing, upon the Executive's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described as provided in Subsections 5(a)(i) and 5(a)(ii) hereofthis Section 5, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will shall pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for over to him all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any vested benefits to which he may be is entitled under and in accordance with the terms of the Company's employee savings, stock ownership, supplemental executive retirement and similar Plans in the event such payments are not otherwise made in accordance with the terms of such plans.
iii) Except to the extent that the payments or benefits pursuant to this Section 5(a)(iii) would result in a reduction of the amount of the Severance Payment because they would exceed the 299% Amount, (A) for the remainder of the Period of Employment the Company shall arrange to provide the Executive with Employee Benefits substantially similar to those which the Executive was receiving or entitled to receive immediately prior to the Termination Date (and if and to the extent that such benefits shall not or cannot be paid or provided under any plan policy, plan, program or arrangement of the Company solely due to the fact that the Executive is no longer an officer or employee of the Company, then the Company shall itself pay or provide for the payment to the Executive, his dependents and beneficiaries, such Employee Benefits) and (B) without limiting the generality of the foregoing, the remainder of the Period of Employment shall be considered service with the Company for the purpose of service credits under the Company's retirement income, supplemental executive retirement and other benefit plans of the Company applicable to the EmployeeExecutive or his beneficiaries immediately prior to the Termination Date. LikewiseWithout otherwise limiting the purposes or effect of Section 6 hereof, Employee Benefits payable to the Executive pursuant to this Subsection 5(bSection 5(a)(iii) by reason of any "welfare benefit plan" of the Company (as the term "welfare benefit plan" is defined in Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended) shall not be interpreted reduced to entitle the Employee to a bonus under extent comparable welfare benefits are actually received by the Bonus Plan Executive from another employer during such period following his termination of employment except as provided in the Bonus Plan which requires employment on Executive's Termination Date until the last day expiration of the Company's taxable year as a condition to receipt Period of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65Employment.
(civ) Notwithstanding anything contained in this Agreement any provision of the Section 5(a) to the contrary, in the event the benefits intended to be provided to the Executive pursuant to Section 5(a)(iii) hereof are required to be reduced in whole or in part because the value of such Employee Benefits, when added to the amount of the Severance Payment under Section 5(a)(i), would exceed 299% Amount, the Executive shall have the option to elect to receive, in lieu of all or a portion of the Severance Payment provided in Section 5(a)(i) hereof, one or more Employee Benefits, provided that (A) prior to the receipt of any payment under Section 5(a)(i) hereof, the Executive Benefit or Employee Benefits so elected to be received, and (B) in no event shall the "aggregate present value of the payments in the nature of compensation" (as that phrase is used in Section 280G of the Code) received by the Executive as a result of the receipt of such Employee Benefits, when added to the remaining portion of the Severance Payment, if any, to be received by the Executive, exceed the 299% Amount.
v) In addition to all other than compensation due to the Executive, the following shall occur immediately following the occurrence of a Change in Control:
A) all Company stock options held by the Executive prior to a Change in Control shall become fully exercisable, regardless of whether or not the vesting conditions set forth in the relevant stock option agreements have been satisfied in full; and
B) all restrictions on any restricted Company stock granted to the Executive prior to a Change in Control shall be removed and the stock shall be freely transferable, regardless of whether the conditions set forth in the relevant restricted stock agreements have been satisfied in full.
b) Upon written notice given by the Executive to the Company prior to the receipt of any payment pursuant to Section 16 5(a) hereof, the Executive, at his sole option, without reduction to reflect the present value of such amounts as aforesaid, may elect to have all or any of the Severance Payment payable pursuant to Section 5(a)(i) hereof paid to him on a quarterly or monthly basis during the remainder of the Period of Employment.
c) There shall be no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to or benefit for the Executive provided for in this Agreement.
d) Without limiting the rights of the Executive at law or in equity, if the Employee breaches Company fails to make any payment required to be made hereunder on a timely basis, the Company shall pay interest on the amount thereof at an annualized rate of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable interest equal to the Employee under this Section 5then-applicable Discount Rate or, if lesser, the highest rate allowed by applicable usury laws.
Appears in 1 contract
Samples: Change in Control Agreement (Southwest Bancorp Inc /Tx/)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's Upon termination of employment (for any reason, the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
Executive shall be entitled to: (A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on all Base Salary earned through the date of termination of employment regardless of the Payment Termto be paid according to Section 4; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described any Annual Bonuses, pro-rated, to be paid in Subsection 5(a)(iiaccordance with Section 5(a) shall be made at the same time and Section 5(b) above (unless termination is for Cause, as the Employee's payment under Subsection 5(a)(vi)(Adefined below) ; (C) all accrued but shall be calculated using the Employee's Target Annual Bonus Percentage for unused vacation time, and (d) reimbursement of all calculation purposesreasonable expenses as set forth in Section 8.
(b) If Upon termination of employment by Company for any reason other than for cause (“Cause”) as defined in Section 11(c), or upon termination of employment by Executive for good reason (“Good Reason”) as defined in Section 11(d)(1), Executive shall be entitled to receipt of all vested and unvested shares contemplated in the Employee's employment hereunder terminates due to Executive Award in accord with the Employee's death, disability, any vesting schedule as if no termination occurred.
(c) In the event of a termination by the Company for Cause or termination without Cause, by the Employee other than Executive for Good ReasonReason or by the Executive within one hundred eighty days (180) days of the occurrence of a Change of Control (as defined below) and subject to the additional provisions of Section 11(d)(3), then no further compensation or benefits will be provided in addition to the Employee severance compensation set forth in Section 6(a) and 6(b), Executive shall also be entitled to the following enhanced separation benefits (“Enhanced Separation Benefits”): (i) the greater of Executive’s continued Base Salary through the balance of the Employment Period, as renewed, or twenty four (24) months of Executive’s then Base Salary; (ii) continued participation in Company welfare benefit plans (including health benefits) on the same terms as immediately prior to termination and to be paid in full by the Company under for the period of time set forth in this Agreement following Section 6(c) (not to be less than twelve (12) months of continuation of benefits) and (iii) immediate vesting of all stock options/equity awards.
(d) Upon termination of Executive’s continued benefits (either pursuant to Section 6(a), 6(b) or 6(c) as the case may be), the Executive may continue coverage with respect to the Company’s group health plans as permitted by the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for himself and each of his “Qualified Beneficiaries” as defined by COBRA (“COBRA Coverage”). The Company shall reimburse the amount of any COBRA premium paid for COBRA Coverage timely elected by and for the Executive and any Qualified Beneficiary of the Executive, and not otherwise reimbursed, during the period that ends on the earliest of (x) the date of such termination of employment other than payment of compensation earned the Executive or the Qualified Beneficiary, as the case may be, ceases to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereofbe eligible for COBRA Coverage, this Subsection 5(b(y) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year consecutive eighteen (18) month period following the date of the Executive’s termination of employment and (z) the date the Executive or the Qualified Beneficiary, as a condition to receipt of a bonus thereunder for such year except in the cases of deathcase may be, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches is covered by another group health plan. To reimburse any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee COBRA premium payment under this Section 5paragraph, the Company must receive documentation of the COBRA premium payment within ninety (90) days of its payment.
Appears in 1 contract
Samples: Executive Employment Agreement (Red Cat Holdings, Inc.)
Severance Compensation. If Cleveland-Cliffs shall terminate the EmployeeExecutive's employment is terminated ---------------------- during a Protected Periodthe Period of Employment, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than pursuant to Section 4(a) hereof, or if the Executive shall terminate his employment pursuant to Section 4(b) hereof, then in lieu of any further payments to the Executive for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on periods subsequent to the date of the EmployeeExecutive's termination of employment (the "Payment TermTermination Date") ), the Company shall:
(i) continue date of which shall be the date of termination or such other date that may be specified by the Executive if the termination is pursuant to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(aSection 4(b) hereof, Cleveland-Cliffs shall provide Severance Compensation to the Executive as described below: Severance Pay. Within five business days after the Termination Date: Cleveland-Cliffs shall pay to the Executive a lump sum payment (the "Severance Payment") in an amount equal to the present value (using a discount rate prescribed for purposes of valuation computations under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or any successor provision thereto, or if no such annual base salary has decreased during rate is so prescribed, a rate equal to the one year period ending on then applicable interest rate prescribed by the Employee's Pension Benefit Guaranty Corporation for benefit valuations in connection with non-multiemployer pension plan terminations assuming the immediate commencement of benefit payments (the "Discount Rate")) of the amount of Base Pay that would have been paid to the Executive pursuant to Section 3(a) for the duration of the Period of Employment if the termination of employment, had not taken place (at the highest rate in effect during such one year periodimmediately prior to the Change of Control or prior to the Termination Date, whichever is higher) and, if the Termination is on account of the Executive's Disability, reduced by the amount of disability benefits that would have been paid to the Executive for the duration of the Period of Employment if the termination had not taken place; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
plus the amount of Average Incentive Pay (iias that term is hereinafter defined) continue that would have been paid to the Employee's participation in the Bonus Plan as provided in Subsection Executive pursuant to Section 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date duration of the Employee's termination Period of employment calculated as Employment if the Employee termination had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date not taken place. For purposes of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof Average Incentive Pay for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) any 12 month period commencing on shall mean an amount which is the date greater of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay average amount of Incentive Pay (as defined in Section 3(b) hereof) awarded to the total of Executive for the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following three calendar years immediately prior to the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
Termination Date, or (B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement amount of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination most recent award of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65Incentive Pay.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Contingent Employment Agreement (Cleveland Cliffs Inc)
Severance Compensation. If Upon termination of Executive's employment prior to expiration of the EmployeeEmployment Period unless the Executive's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Executive terminates his employment without Good Reason, then, through the one year period commencing on Executive shall be entitled to receive any and all reasonable expenses paid or incurred by the date Executive in connection with and related to the performance of the Employee's termination of employment (the "Payment Term") his duties and responsibilities for the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employeetermination date, any accrued but unused vacation time through the termination date in accordance with Company policy and an amount equal to (a) Executive's termination of employmentBase Salary during the prior six months and (b) Bonus and Override Bonus during, at prior six months (the highest rate “Separation Period”), as in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding termination (the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position“Separation Payment”), provided that Executive executes an agreement releasing Company and its affiliates from any liability associated with this Agreement in form and terms satisfactory to the Company and complies with his other obligations under this Agreement as provided in Section 12 and 13 hereof, as a condition to such outplacement services will be provided for a six Separation Payment. In the event that either party provides the other party with written notice not to renew this Agreement at least three (63) month period commencing on months prior to the expiration of the Employment Period pursuant to Paragraph 2 and the Company, after such notice, terminates Executive's employment prior to the expiration of the Employment Period, the date of termination for purposes of employment regardless this Paragraph 6 shall be construed to be the expiration of the Payment TermEmployment Period; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) effect which shall be made at that Executive shall continue to receive his Base Salary, Bonuses and other perquisites and benefits specified in this Agreement through the same time stated Employment Period after which the Severance Compensation as specified in this Paragraph 6 shall commence. [For purposes of illustration, in the Employeeevent that Executive notifies Company on September 15, 2014 of his intention not to renew this Agreement and Company, on September 16, 2014 terminates Executive's payment under Subsection 5(a)(vi)(A) but employment, Executive shall be calculated using entitled to receive his Base Salary, Bonuses and other perquisites and benefits specified in this Agreement in full through December 31, 2014 as if still employed by Company with the EmployeeSeverance Compensation specified in this Paragraph 6 to commence on January 1, 2015.] In addition, the Executive's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits cost of COBRA coverage will be provided to the Employee by the Company under this Agreement covered for a period of six months following the date of such termination of employment other than payment of compensation earned to termination. The Separation Payment shall be paid in in accordance with the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day customary payroll practices of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Executive Employment Agreement (IZEA Holdings, Inc.)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, before the Contract Expiration Date, Employee's employment is terminated by the Company other than for Cause Subsidiary without cause or is terminated by the Employee for Good Reasongood reason, then, except as provided in Paragraph 12(b), 12(c), or 12(d), the Company shall cause to be paid and provided to Employee (i) base salary at the highest monthly rate payable to Employee during the Contract Period through the one year period commencing on last to occur of (x) the expiration of six months after the effective date of the Employee's termination of employment termination, and (y) the Contract Expiration Date (such last-to-occur date is hereinafter referred to as the "Payment TermSeverance Benefits Termination Date") and a bonus award accrued for the Company shall:
(i) continue year in which such termination occurs determined in accordance with the Company's bonus plan as in effect immediately prior to pay the Employee's annual base salary Change in the then prevailing amount Control Date and at a level no less than the times specified target amount thereunder for the year in Subsection 3(a) hereof, or if which such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year periodoccurs; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
and (ii) continue the Employee's participation in following benefits for a period of twelve months following the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company willContract Expiration Date:
(A) pay the Employee a bonus coverage under the Bonus Plan for Company's medical insurance plan, short-term disability plan, long-term disability plan, salary continuation arrangement, disability benefit arrangement, and executive life insurance benefit (provided that [he][she] became eligible to participate therein prior to the partial year period ending date [his][her] employment is terminated), each as in effect on the date of the Change in Control Date (or, if subsequently amended to increase benefits to Employee or [his][her] dependents, as so amended) and each as if Employee's termination of employment calculated as if the Employee had continued to be employed for through the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employmentSeverance Benefits Termination Date; and
(B) thereafter, during coverage and service credit under the remainder of Salaried Plan and any Excess Benefit Plan maintained in connection with the Payment Term, a bonus Salaried Plan under which [he][she] is eligible to participate so that the aggregate benefits payable to or with respect to the Employee under the Salaried Plan and any such Excess Benefit Plan will be equal to the aggregate benefits that would have been paid to or with respect to Employee under the Salaried Plan and any such Excess Benefit Plan if Employee's Target Annual Bonus Percentageemployment had continued through the Severance Benefits Termination Date. If any of the benefits to be provided under one or more of the plans, multiplied by agreements, or arrangements specified above cannot be provided through that plan, agreement, or arrangement to Employee following termination of [his][her] employment, the Company shall cause the full equivalent of such benefits to Employee's annual base salary in . For example, since it is not possible to provide additional service credit directly through the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses Salaried Plan, if Employee becomes entitled to an additional 18 months of service credit under the Bonus Salaried Plan are customarily payablepursuant to (B) above, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay be required to cause payment to Employee, from its general assets or those of its Subsidiary, on each date on which Employee receives a payment from the total of Salaried Plan, a supplemental payment equal to the amount by which that particular payment under the Salaried Plan would have been increased if Employee's annual base salary total service credit under the Salaried Plan were 18 months greater than is actually the case. In addition, if in these circumstances any payments described in Subsection 5(a)(i) in a single sum within thirty (30) days become due under the Salaried Plan with respect to Employee following [his][her] death, the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan Company will be obligated to cause similar supplemental payments described in Subsection 5(a)(ii) shall with respect to Employee to be made at on the same time as dates on which payments are made with respect to Employee under the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesSalaried Plan.
(b) If Notwithstanding the Employee's employment hereunder terminates due foregoing provisions of Paragraph 12(a), the Company shall cause any benefit to which Employee becomes entitled pursuant to the Employee's deathprovisions of Paragraph 8 or 12(a) under the Salaried Plan or the Excess Benefit Plan including, disabilityin the event Employee is not fully vested under the provisions of either, the present value of any otherwise forfeitable benefit thereunder, to be paid in a single sum to Employee as soon as practicable, but not more than thirty days following [his][her] termination by of employment, with present value determination to be made based on actuarial factors for single sum payments set forth in the Salaried Pension Plan. Employee shall have no duty to mitigate the amount of any payment or benefit provided for in this Agreement.
(c) If during any period in which Employee is entitled to payments or benefits under Paragraph 12
(a) Employee materially and willfully breaches [his][her] agreement with respect to confidential information set forth in Paragraph 13 hereof and such breach directly causes the Company for Cause or termination by the Employee other than for Good ReasonSubsidiary substantial and demonstrable damage, then no further compensation or benefits the Company will be provided to relieved of its obligations under Paragraph 12(a) hereof as of the Employee by first day of the Company under this Agreement month immediately following the date of such termination material breach.
(d) If Employee dies on or before the Severance Benefits Termination Date or, with respect to benefits, the Contract Expiration Date, and immediately before [his][her] death [he][she] is entitled to payments or benefits under Paragraph 12(a), the Company will be relieved of employment other than payment of compensation earned its obligations under Paragraph 12(a) with respect to the date of termination of employment but not yet paid. As more fully base salary and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement bonus payments as of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last first day of the Companymonth immediately following the month in which Employee dies and thereafter the Company will cause to be provided to Employee's taxable year beneficiaries and dependents salary continuation payments, benefits under any Excess Benefits Plan (as supplemented by item (B) of Paragraph 12(a)), and continuing medical and dental benefits to the same extent (subject to reduction for payments or benefits from a condition to receipt of a bonus thereunder for such year except new employer under Paragraph 12(c)) as if Employee's death had occurred while Employee was in the cases active employ of death, disability or retirement at or after either age 62 with ten years of service or age 65the Subsidiary.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Change in Control and Employment Agreement (Oglebay Norton Co /Ohio/)
Severance Compensation. a) If the Employee's employment is terminated ---------------------- during a Protected Periodpursuant to Section 4(b) (death) or Section 4(c) (disability), Employee's Base Salary and other benefits shall cease as of the date of termination, and Employee shall be eligible for bonus compensation for the year in which his employment is terminated as follows: With respect to the Company Performance Goal, the bonus shall be determined as if Employee's employment had not terminated during such calendar year, except that Employee's bonus shall equal the amount which the bonus would have been with respect to such Goal multiplied by a fraction, the numerator of which is the number of days in such calendar year during which Employee was employed by the Company and the denominator of which is the number of days in such calendar year. With respect to his Individual Performance Goals, Employee acknowledges that those are unique goals personal to Employee and that the determination of whether such Goals shall have been met shall be made as of the date of termination of employment. Such determination shall be made by a Responsible Officer within 60 days following severance provisions will apply:termination of Employee's employment. If it is determined that his Individual Performance Goals were achieved, in whole or in part, to the extent necessary to achieve all or a portion of the bonus for Individual Performance Goals for such year, such payment shall be made promptly following such determination.
(ab) If Employee's employment is terminated pursuant to Section 4(a) (by Employee following end of Employment Term) or Section 4(d) (by the Company For Cause), Employee's Base Salary and other benefits shall cease as of the date of termination, and Employee shall not be entitled to any bonus for the calendar year during which his employment shall be terminated or at any time thereafter.
c) If Employee's employment is terminated pursuant to Section 4(e) (by the Company other than For Cause) prior to the end of the Employment Term, Employee shall be: (A) entitled to continue to receive Base Salary in accordance with Section 3 of this Agreement through the end of the Employment Term, payable when and in the manner as if Employee's employment had not terminated; (B) unless otherwise prohibited by the Group Benefit Plans, entitled to receive benefits (other than vacation) under Section 3 of this Agreement until the earlier of the date Employee accepts other employment or the end of the Employment Term; provided, however, that if insurance benefits do not commence for some grace period following commencement of Employee's new employment, the benefits under this Agreement shall continue until the earlier of the end of such grace period or 90 days from commencement of employment (and Employee agrees to promptly notify the Company of his acceptance of other employment); and (C) eligible for bonus compensation through the end of the calendar year in which his employment terminates. With respect to the Company Performance Goal, the bonus shall be determined as if Employee's employment had not terminated (without proration). With respect to Individual Performance Goals, Employee acknowledges that those are unique goals personal to Employee and Employee shall be eligible for a bonus with respect such Goals only for the year in which his employment shall be terminated and then based upon whether those Goals shall have been met as of the date of termination of employment. Such determination shall be made by a Responsible Officer within 60 days following termination of Employee's employment. If it is determined that such Goals are achieved, in whole or in part, to the extent necessary to achieve all or a portion of the bonus for the Individual Performance Goals for such year, such payment shall be promptly made following such determination.
d) If Employee terminates his employment in breach of this Agreement prior to the end of the Employment Term, Employee shall as of the date of termination cease to be entitled to Base Salary, benefits or bonuses. In addition, the Company shall be entitled to seek any other available remedies pursuant to this Agreement or otherwise for such breach, and to offset against any amounts due Employee any damages suffered as a result of such breach.
e) In the event of termination of Employee's employment pursuant to Section 4(d) (by the Company For Cause), and subject to applicable law and regulations, the Company shall be entitled to offset against any payments due Employee the loss and damage, if any, which shall have been suffered by the Company as a result of the acts or omissions of Employee giving rise to termination under Section 4(d). The foregoing shall not be construed to limit any cause of action, claim or other rights which the Company may have against Employee in connection with such acts or omissions.
f) Employee acknowledges that the Company has the right to terminate Employee's employment other than For Cause and that such termination shall not be a breach of this Agreement or any other express or implied agreement between the Company and Employee. Accordingly, in the event of such termination, Employee shall be entitled only to those benefits specifically provided for in this Agreement in the event of such termination, and shall not have any other rights to any compensation or damages from the Company for breach of contract.
g) If Employee's employment is terminated by the Company other than for Cause or is terminated pursuant to Section 4(d) (by the Company For Cause) or by Employee for Good Reasonin breach in this Agreement on or prior to April 13, then1999, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") Employee shall reimburse the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on Signing Bonus paid by the date of the Employee's termination of employment calculated as if the Employee had continued to Company. Such reimbursement shall be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding made within 10 days following the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(aemployment. The Company shall have the right to offset against any payments due from the Company to Employee all or any portion of such Signing Bonus required to be reimbursed by Employee.
h) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary Employee acknowledges that in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date event of termination of his employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereoffor any reason, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) he shall not be interpreted entitled to deny any severance or other compensation from the Employee any benefits to which he may be entitled under Company except as specifically provided in this Section 5. Without limitation on the generality of the foregoing, this Section supersedes any plan or arrangement policy of the Company applicable which provides for severance to the Employee. Likewiseits officers or employees, this Subsection 5(b) and Employee shall not be interpreted entitled to entitle the Employee to a bonus any benefits under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for any such year except in the cases of death, disability plan or retirement at or after either age 62 with ten years of service or age 65policy.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, following the Employeeoccurrence of a Change in Control, the Company shall terminate the Executive's employment is terminated by during the Company Period of Employment other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall:
(i) continue pursuant to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(aSection 4(a) hereof, or if the Executive shall terminate his employment pursuant to Section 4(b) hereof, the Company shall pay to the Executive the amount specified in Section 5(a)(i) hereof within five business days after the date (the "Termination Date") that the Executive's employment is terminated (the effective date of which shall be the date of termination or such annual base salary has decreased during other date that may be specified by the one year period ending on Executive if the Employee's termination is pursuant to Section 4(b) hereof):
(i) In lieu of employmentany further payments to the Executive for periods subsequent to the Termination Date, a lump sum payment (the "Severance Payment") in an amount equal to the present value (using a discount rate prescribed for purposes of valuation computations under Section 280G of the Code or any successor provision thereto, or if no such rate is so prescribed, a rate equal to the then-applicable interest rate prescribed by the Pension Benefit Guarantee Corporation for benefit valuations in connection with non-multiemployer pension plan terminations assuming the immediate commencement of benefit payments (the "Discount Rate")) of the sum of (A) the aggregate Base Pay (at the greater of the highest rate in effect either immediately preceding the occurrence of the Change in Control 7 or during such one the Period of Employment) for each remaining year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the or partial year period ending on the date of the Employee's Period of Employment which the Executive would have received had such termination of employment calculated as if or breach not occurred, plus (B) the Employee had continued to be employed for the entire year except that the Employee's bonus percentage aggregate Incentive Pay (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection the provisions of Section 3(a) hereof for hereof), which the partial year period ending on the Employee's termination of employment; and
(B) thereafter, Executive would have received pursuant to this Agreement during the remainder of the Payment Term, a bonus equal Period of Employment had his employment continued for the remainder of the Period of Employment. Notwithstanding the foregoing provisions of this Section 5(a)(i) but subject to the Employee's Target Annual Bonus Percentageproviso hereinafter set forth, multiplied by if the Employee's annual base salary Executive is a Disqualified Individual (as the term "Disqualified Individual" is defined in Section 280G of the Code or any successor provision thereto) and if any portion of the Severance Payment would be an Excess Parachute Payment (as the term "Excess Parachute Payment" is defined in Section 280G of the Code or any successor provision thereto) but for the application of this sentence, then the amount specified in Subsection 5(a)(i) of the Severance Payment otherwise payable during to the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus Executive pursuant to this Agreement shall be payable with reduced to the final payment minimum extent necessary (but in no event to less than zero) so that no portion of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for Severance Payment, as so reduced, constitutes an Excess Parachute Payment; provided, however, that if the Employee from Executive's employment is terminated prior to January 1, 1989 in a nationally recognized executive outplacement firm at manner giving rise to a level consistent with Severance Payment pursuant to this Section 5, then the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
Executive shall receive (A) the Company will pay the total of the Employee's annual base salary payments described Severance Payment calculated as set forth in Subsection this Section 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
but without regard to any required reduction imposed to avoid causing such Severance Payment constitute an Excess Parachute Payment and (B) his Bonus Plan payments described in Subsection 5(a)(ii) such other amounts as shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall required to be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination paid by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided pursuant to the Employee by the Company under this Agreement following the date of Section 11 hereof if such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) Severance Payment shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65constitute an Excess Parachute Payment.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Severance Compensation. If the Employee's Company terminates Executive without Cause (as defined below) or Executive terminates his employment is terminated ---------------------- during a Protected Periodwith Good Reason (as defined below), then the Company shall pay or provide all of the following severance provisions will applyto Executive:
(a) If the Employee's employment is terminated Executive shall be entitled to (1) reimbursement of any and all business expenses paid or incurred by the Company other than for Cause or is terminated by the Employee for Good Reason, then, Executive through the one year period commencing on termination date, pursuant to Section 10 below, (2) receipt of any accrued but unused paid time off through the termination date of the Employee's termination of employment (the "Payment Term") the in accordance with Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereofpolicy, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate as in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreementtermination, (3) receipt of any earned but disregarding the termination unpaid Base Salary accrued through Executive’s last date of employment with the Company, and (4) receipt of an amount equal to a portion of the EmployeeExecutive’s Base Salary, as set forth in Section 6(c) shall below (all of these payments are collectively the “Separation Payment”), provided that to be applied eligible to be paid the Base Salary portion of the Separation Payment described in Section 6(a)(4), Executive must execute an agreement releasing Company and its affiliates from any liability associated with this Agreement in form and terms satisfactory to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination Company and that all time periods imposed by law permitting cancellation or revocation of employmentsuch release by Executive shall have passed or expired; and
(Bb) thereafterSubject to Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, during the remainder of the Payment Term, a bonus equal as amended (“COBRA”) with respect to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary Company’s group health insurance plans in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing participated immediately prior to the Company within five termination date (5) business days after the date of the Employee's termination of employment:
(A) “COBRA Continuation Coverage”), the Company will pay the total cost of COBRA Continuation Coverage for Executive and his eligible dependents until the Employee's annual base salary payments described in Subsection 5(a)(iearlier of (i) in a single sum within thirty Executive and his eligible dependents, as the case may be, ceasing to be eligible under COBRA, or (30ii) days four (4) months following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
date (Bthe benefits provided under this Section 6(b), the “Medical Continuation Benefits”) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same or until such time as the Employee's payment under Subsection 5(a)(vi)(A) but Executive shall be calculated using the Employee's Target Annual Bonus Percentage obtain reasonably equivalent benefits for all calculation purposes.
(b) If the Employee's him and his eligible dependents from subsequent employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65spousal benefits.
(c) The Base Salary portion of the Separation Payment described in Section 6(a)(4) above shall be four (4) months of Executive’s Base Salary (at the rate that was in effect at the time of termination), less Base Salary paid to Executive for any portion of the Notice Period (defined below) that Executive is directed by the Company not to work. Such Base Salary portion shall be paid at such time and in such manner as such Base Salary would have been paid had Executive remained employed in accordance with the customary payroll practices of the Company, except that, to the extent Executive becomes entitled to a Separation Payment on account of a separation from service that occurs within 120 days after a Change of Control (to the extent such Change of Control meets the requirements for a change in control event under Section 409A), the Base Salary portion of such Separation Payment shall be payable in a lump sum within 60 days following such separation from service subject to all other terms and conditions herein. Notwithstanding anything contained in this Agreement herein to the contrary, in the event that the period in which a release agreement could be considered and become irrevocable spans two taxable years, any Separation Payment that becomes payable hereunder shall be paid or commence in the later of the two taxable years, subject to all other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5terms and conditions herein.
Appears in 1 contract
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If Without affecting any additional obligations of the Employee's employment Company set forth in an applicable Compensation Resolution, if this Agreement is terminated by in the manner described in Sections 4(b)(i) or 4(b)(ii) hereof, the Company other than for Cause or shall pay to the Executive the amount specified in Section 5(a)(i) hereof within five business days after the date (the "Termination Date") that this Agreement is terminated by (the Employee for Good Reason, then, through the one year period commencing on effective date of which shall be the date of termination, or such other date that may be specified by the Employee's Executive if the termination of employment (the "Payment Term"is pursuant to Section 4(b) the Company shall:hereof):
(i) continue In lieu of any further payments to pay the Employee's annual base salary Executive for periods subsequent to the Termination Date, but without affecting the rights of the Executive referred to in Section 5(c) hereof or pursuant to any stock option, phantom stock, stock appreciation right, restricted stock grant or similar award, (x) if the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employmentthe Executive's employment occurs prior to the occurrence of a Change in Control, at a lump sum payment (the highest rate "Pre-Change in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(iiControl Severance Payment") continue in an amount equal to the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
sum of (A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
aggregate Base Pay plus (B) thereafterthe aggregate Incentive Pay, which, in each case, the Executive would have received pursuant to this Agreement during the remainder of the Payment TermTerm had the Executive's employment continued for the remainder of the Term and (y) if the termination of the Executive's employment occurs subsequent to the occurrence of a Change in Control, a bonus lump sum payment (the "Post-Change in Control Severance Payment") in an amount equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment sum of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
aggregate Base Pay plus (B) his the aggregate Annual Bonus Plan payments described which the Executive would have received pursuant to this Agreement during the remainder of the Term had the Executive's employment continued for the remainder of the Term. The Pre-Change in Subsection 5(a)(iiControl Severance Payment and the Post-Change in Control Severance Payment are hereinafter collectively referred to as the "Severance Payment."
(ii) For the remainder of the Term the Company shall arrange to provide the Executive with Employee Benefits substantially similar to those which other senior executive officers of the Company are entitled to receive (and if and to the extent that such benefits shall not or cannot be paid or provided under any policy, plan, program or arrangement of the Company solely due to the fact that the Executive is no longer an officer or employee of the Company, then the Company shall itself pay to the Executive and/or the Executive's dependents and beneficiaries, such Employee Benefits) and (B) without limiting the generality of the foregoing, the remainder of the Term shall be made at considered service with the same time as Company for the Employeepurpose of service credits under the Company's payment under Subsection 5(a)(vi)(A) but shall be calculated using retirement income, supplemental executive retirement and other benefit plans applicable to the EmployeeExecutive and/or the Executive's Target Annual Bonus Percentage for all calculation purposesdependents and beneficiaries immediately prior to the Termination Date.
(b) If this Agreement is terminated during the Employee's employment hereunder terminates due to the Employee's death, disability, termination Term by the Company for Cause pursuant to Section 4(a)(ii) hereof or termination if this Agreement is terminated during the Term by the Employee Executive for any reason other than for Good Reasonpursuant to Section 4(b) hereof, then no further compensation or benefits the Executive will be provided forfeit any right to receive any unpaid Incentive Pay. If this Agreement is terminated during the Employee Term (i) by the Company under this Agreement following as a result of the date death of such termination of employment the Executive or (ii) by the Executive for any reason other than payment of compensation earned pursuant to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 4(b) hereof, this Subsection 5(b) shall not be interpreted the Executive will forfeit any right to deny the Employee receive any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65unpaid Annual Bonus.
(c) Notwithstanding anything contained Upon written notice given by the Executive to the Company prior to the receipt of any payment pursuant to Section 5(a) hereof, the Executive, at the Executive's sole option, without adjustment to reflect the present value of such amounts as aforesaid, may elect to have all or any of the Severance Payment payable pursuant to Section 5(a)(i) hereof paid to the Executive on a quarterly or monthly basis during the remainder of the Term.
(d) There shall be no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to or benefit (including Employee Benefits) of the Executive provided for in this Agreement to Agreement.
(e) Without limiting the contrary, other than Section 16 hereofrights of the Executive at law or in equity, if the Employee breaches Company fails to make any payment required to be made hereunder on a timely basis, the Company shall pay interest on the amount thereof at an annualized rate of his obligations interest equal to the then-applicable Discount Rate (as hereinafter defined) or, if lesser, the highest rate allowed by applicable usury laws. As used herein, the term "Discount Rate" will be deemed to mean the discount rate required to be utilized for purposes of computations under Section 9 280G of the Internal Revenue Code of 1986, as amended (the "Code"), or 10 hereofany successor provision thereto, or if no further severance payments or other benefits will such rate is so required to be payable used, a rate equal to the Employee under this Section 5then-applicable interest rate prescribed by the Code for benefit valuations in connection with non-multiemployer pension plan terminations assuming the immediate commencement of benefit payments.
Appears in 1 contract
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, following the Employeeoccurrence of a Change in Control, the Company shall terminate the Executive's employment is terminated by during the Company Period of Employment other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall:
(i) continue pursuant to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(aSection 4(a) hereof, or if the Executive shall terminate his employment pursuant to Section 4(b) hereof, the Company shall continue to provide the following benefits and shall further pay to the Executive the following amounts within five business days after the date (the "Termination Date") that the Executive's employment is terminated (the effective date of which shall be the date of termination, or such annual base salary has decreased during other date that may be specified by the one year period ending on Executive if the Employee's termination is pursuant to Section 4(b) hereof):
(i) In lieu of employmentany further payments to the Executive for periods subsequent to the Termination Date, but without affecting the rights of the Executive referred to in Section 5(b) hereof, a lump sum payment (the "Severance Payment") in an amount equal to the present value (using a discount rate required to be utilized for purposes of computations under Section 280G of the Code or any successor provision thereto, or if no such rate is so required to be used, a rate equal to the then-applicable interest rate prescribed by the Pension Benefit Guarantee Corporation for benefit valuations in connection with non-multiemployer pension plan terminations assuming the immediate commencement of benefit payments (the "Discount Rate")) of the sum of (A) the aggregate Base Pay (at the highest rate in effect during such one for any period prior to the Termination Date) for each remaining year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the or partial year period ending on the date of the Employee's Period of Employment which the Executive would have received had such termination of employment calculated as if or breach not occurred, plus (B) the Employee had continued to be employed for the entire year except that the Employee's bonus percentage aggregate Incentive Pay (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable determined in accordance with Subsection 3(athe standards set forth in Section 3(a)(ii) hereof for hereof), which the partial year period ending on the Employee's termination of employment; and
(B) thereafterExecutive would have received pursuant to this Agreement or any agreement, policy, plan, program or arrangement referred to therein during the remainder of the Payment TermPeriod of Employment had his employment continued for the remainder of the Period of Employment (in which event the Executive will no longer be entitled to Incentive Pay under any such agreement, a bonus equal policy, plan, program or arrangement except for Incentive Pay to which he was entitled for service prior to the Employee's Target Annual Bonus PercentageTermination Date).
(ii) For the remainder of the Period of Employment, multiplied the Company shall arrange to provide the Executive with Employee Benefits that are welfare benefits, but not stock option, stock purchase, stock appreciation, or similar compensatory benefits, substantially similar to those which the Executive was receiving or entitled to receive immediately prior to the Termination Date (and if and to the extent that such benefits shall not or cannot be paid or provided under any policy, plan, program or arrangement of the Company or any Subsidiary, as the case may be, then the Company shall itself pay or provide for the payment to the Executive, his dependents and beneficiaries, such Employee Benefits). Without otherwise limiting the purposes or effect of Section 7 hereof, Employee Benefits otherwise receivable by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing Executive pursuant to the Company within five (5) business days after the date first sentence of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection this Section 5(a)(ii) shall be made at reduced to the same time as extent comparable welfare benefits are actually received by the EmployeeExecutive from another employer during such period following the Executive's payment under Subsection 5(a)(vi)(A) but Termination Date, and any such benefits actually received by the Executive shall be calculated using reported by the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due Executive to the Employee's deathCompany. Notwithstanding the foregoing, disability, termination by the remainder of the Period of Employment shall be considered service with the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or purpose of determining service credits and benefits will be provided due and payable to the Employee by Executive under the Company under this Agreement following the date of such termination of employment Company's retirement income, supplemental executive retirement and other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement benefit plans of the Company applicable to the Employee. LikewiseExecutive or his beneficiaries immediately prior to the Termination Date.
(b) Upon written notice given by the Executive to the Company prior to the occurrence of a Change in Control, this Subsection 5(b) shall not be interpreted the Executive, at his sole option, without reduction to entitle reflect the Employee present value of such amounts as aforesaid, may elect to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day have all or any of the Company's taxable year as Severance Payment payable pursuant to Section 5(a)(i) hereof paid to him on a condition to receipt quarterly or monthly basis during the remainder of a bonus thereunder for such year except in the cases Period of death, disability or retirement at or after either age 62 with ten years of service or age 65Employment.
(c) Notwithstanding anything contained There shall be no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to or benefit for the Executive provided for in this Agreement to Agreement, except as expressly provided in Section 5(a)(ii) hereof.
(d) Without limiting the contrary, other than Section 16 hereofrights of the Executive at law or in equity, if the Employee breaches Company fails to make any payment required to be made hereunder on a timely basis, the Company shall pay interest on the amount thereof at an annualized rate of his obligations under Section 9 or 10 interest equal to the then-applicable Discount Rate.
(e) Notwithstanding any other provision hereof, no further severance payments or other benefits will be payable to the Employee parties' respective rights and obligations under this Section 55 will survive any termination or expiration of this Agreement or the termination of the Executive's employment for any reason whatsoever.
Appears in 1 contract
Samples: Employment Agreement (Lubrizol Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, following the Employeeoccurrence of a Change in Control, the Employer shall terminate the Executive's employment is terminated by during the Company Term of this Agreement other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall:
(i) continue pursuant to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(aSection 10(a) hereof, or if the Executive shall terminate his employment pursuant to Section 10(b) hereof, the Employer shall continue to provide the following benefits and shall further pay to the Executive the following amounts within five business days after the date (the "Termination Date") that the Executive's employment is terminated (the effective date of which shall be the date of termination or such annual base salary has decreased during other date that may be specified by the one year period ending on Executive if the Employee's termination is pursuant to Section 10(b) hereof):
(i) In lieu of employmentany further payments to the Executive for periods subsequent to the Termination Date, but without affecting the rights of the Executive referred to in Section 4(b) hereof, a lump sum payment (the "Severance Payment") in an amount equal to the present value (using a discount rate required to be utilized for purposes of computations under Section 280G of the Code or any successor provision thereto, or if no such rate is so required to be used, a rate equal to the then-applicable interest rate prescribed by the Pension Benefit Guarantee Corporation for benefit valuations in connection with non-multiemployer pension plan terminations assuming the immediate commencement of benefit payments (the "Discount Rate")) of the sum of (A) the aggregate Base Compensation (at the highest rate in effect during such one for any period prior to the Termination Date) for each remaining year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the or partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date Term of this AgreementAgreement which the Executive would have received had such termination or breach not occurred, but disregarding plus (B) the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable aggregate Incentive Compensation (determined in accordance with Subsection 3(athe standards set forth in Section 3(b) hereof for hereof), which the partial year period ending on the Employee's termination of employment; and
(B) thereafterExecutive would have received pursuant to this Agreement or any agreement, policy, plan, program or arrangement referred to therein during the remainder of the Payment TermTerm of this Agreement had his employment continued for the remainder of the Term of this Agreement (in which event the Executive will no longer be entitled to Incentive Compensation under any such agreement, a bonus equal policy, plan, program or arrangement except for Incentive Compensation to which he was entitled for service prior to the Employee's Target Annual Bonus PercentageTermination Date).
(ii) For the remainder of the Term of this Agreement, multiplied the Employer shall arrange to provide the Executive with Employee Benefits that are welfare benefits, but not stock option, stock purchase, stock appreciation, or similar compensatory benefits, substantially similar to those which the Executive was receiving or entitled to receive immediately prior to the Termination Date (and if and to the extent that such benefits shall not or cannot be paid or provided under any policy, plan, program or arrangement of the Employer or any Subsidiary, as the case may be, then the Employer shall itself pay or provide for the payment to the Executive, his dependents and beneficiaries, such Employee Benefits). Without otherwise limiting the purposes or effect of Section 10 hereof, Employee Benefits otherwise receivable by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing Executive pursuant to the Company within five (5) business days after the date first sentence of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(iithis Section 4(a)(ii) shall be made at reduced to the same time as extent comparable welfare benefits are actually received by the EmployeeExecutive from another employer during such period following the Executive's payment under Subsection 5(a)(vi)(A) but Termination Date, and any such benefits actually received by the Executive shall be calculated using reported by the EmployeeExecutive to the Employer. Notwithstanding the foregoing, the remainder of the Term of this Agreement shall be considered service with the Employer for the purpose of determining service credits and benefits due and payable to the Executive under the Employer's Target Annual Bonus Percentage for all calculation purposesretirement income, supplemental executive retirement and other benefit plans of the Employer applicable to the Executive or his beneficiaries immediately prior to the Termination Date.
(b) If Upon written notice given by the Employee's employment hereunder terminates due Executive to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided Employer prior to the Employee by occurrence of a Change in Control, the Company under this Agreement following Executive, at his sole option, without reduction to reflect the date present value of such termination of employment other than payment of compensation earned amounts as aforesaid, may elect to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee have all or any benefits to which he may be entitled under any plan or arrangement of the Company applicable Severance Payment payable pursuant to Section 4(a)(i) hereof paid to him on a quarterly or monthly basis during the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day remainder of the Company's taxable year as a condition to receipt Term of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65this Agreement.
(c) Notwithstanding anything contained Without limiting the rights of the Executive at law or in this Agreement to the contrary, other than Section 16 hereofequity, if the Employee breaches Employer fails to make any payment required to be made hereunder on a timely basis, the Employer shall pay interest on the amount thereof at an annualized rate of his obligations under Section 9 or 10 interest equal to the then-applicable Discount Rate.
(d) Notwithstanding any other provision hereof, no further severance payments or other benefits will be payable to the Employee parties' respective rights and obligations under this Section 54 will survive any termination or expiration of this Agreement or the termination of the Executive's employment for any reason whatsoever.
Appears in 1 contract
Samples: Employment Agreement (Om Group Inc)
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(f) hereof, (such remaining Employment Term is hereinafter referred to as the date of the Employee's termination of employment (the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a prorated bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee’s termination of employment, at the highest level in effect during such one year period, as long as the Employee continues to make the applicable employee contributions in effect during the Payment Term based on the most senior level contribution rate; and
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of comparable size corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service with the Company or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If 4.1 Severance Compensation in the EmployeeEvent of a Termination Upon a Change in ------------------------------------------------------------------------ Control. In the event the Executive's employment is terminated ---------------------- during in a Protected PeriodTermination ------- Upon a Change in Control, the following Executive shall be paid as severance provisions will apply:
compensation (a"Severance Compensation") If his Base Salary (at the Employee's employment is terminated by rate payable at the Company other than time of such termination), for Cause a period of the lesser of the remaining portion of the Initial Term or is terminated by the Employee for Good Reason, then, through the one year period commencing on twelve (12) months from the date of such termination provided. Notwithstanding anything in this Section to the Employee's termination of employment (contrary, the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary Executive may in the then prevailing amount and at the times specified in Subsection 3(a) hereofExecutive's sole discretion, or if such annual base salary has decreased during the one year period ending on the Employee's termination by delivery of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied notice to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum Corporation within thirty (30) days following a Termination Upon a Change in Control, elect to receive from Compensation a lump sum Severance Compensation payment by bank cashier's check equal to the Employeepresent value of the flow of cash payments that would otherwise be paid to the Executive pursuant to this Section. The Executive shall also be entitled to an accelerated vesting of any awards granted to the Executive under the Corporation's termination Stock Option Plan to the extent provided in the stock option agreement entered into at the time of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employmentgrant. The Executive shall continue to accrue retirement benefits and shall continue to enjoy any benefits under any plans of the Corporation in which the Executive is a participant to the full extent of the Executive's rights under such plans, including any prerequisites provided under this Agreement, though the remaining term of this Agreement; andprovided, however, that the benefits under any such plans of the Corporation in which the Executive is a participant, including any such prerequisites, shall cease upon re-employment by a new employer.
(B) his Bonus Plan payments described 4.2 Severance Compensation in Subsection 5(a)(ii) the Event of a Termination Other Than for ------------------------------------------------------------------------ Cause. In the event the Executive's employment is terminated in a Termination ----- Other Than for Cause, the Executive shall be made paid as Severance Compensation his Base Salary (at the same rate payable at the time as of such termination), for a period of the Employee's payment under Subsection 5(a)(vi)(Alesser of the remaining portion of the Initial Term or twelve (12) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following months from the date of such termination of employment other than payment termination, on the dates specified in Section 3.1; provided, however, that if the Executive is employed by a new employer during such period, the Severance Compensation payable to the Executive during such period will be reduced by the amount of compensation earned that the Executive is receiving from the new employer. Executive is under no obligation to mitigate the amount owed by the Corporation to the date of termination of employment but not yet paidExecutive pursuant to this Section by seeking other employment. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) The Executive shall not be interpreted to deny the Employee any benefits to which he may be entitled under to an accelerated vesting of any plan or arrangement of the Company applicable awards granted to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus Executive under the Bonus Corporation's Stock Option Plan following his termination of employment except as to the extent provided in the Bonus Plan which requires employment on stock option agreement entered into at the last day time of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65grant.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Donobi Inc)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment this Agreement is terminated (i) as a result of the Company's failure to renew this Agreement as provided in Section 1 above, (ii) by the Company other than without Cause (as provided in Section 6.4 above), (iii) because of Employee's resignation with Good Reason (as defined below) or (iv) because of Employee's death or disability, (a) Employee will receive Employee's base salary and benefits under this Agreement (at the Company's expense) for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on two years following the date of termination and (b) to the Employee's extent EBITDA targets under Exhibit A are met during the Measuring Period in which the termination occurs, Employee will receive a pro rata bonus based on the number of employment (days Employee was employed during the "Payment Term") Measuring Period. Notwithstanding anything herein to the contrary, in no event shall Employee be entitled to additional compensation for the economic value of any benefits provided by, or expenses paid by, the Company shall:pursuant to this Agreement, including unused vacation or sick leave.
(b) In addition to the compensation described in Section 6.5(a) above, the parties agree that: (x) in the event Employee resigns his employment for Good Reason pursuant to this Section 6.5, then,
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(ano later than thirty (30) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of such resignation, Employee may deliver a notice (the "Liquidity Notice") to the Company and to Holdings directing Holdings to exercise its Repurchase Option as to the number of Executive Units designated by Employee, in Employee's sole discretion, in the Liquidity Notice, but not to exceed 50% of all Executive Units (Repurchase Option and Executive Units each being as defined in the Management Unit Purchase Agreement, dated as of March 12, 1999 (the "Management Equity Agreement"), by and between Holdings and the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum and Holdings shall repurchase such Executive Units, for cash, within thirty (30) days following of such notice from Employee and (ii) no later than thirty (30) days after the Employee's termination second anniversary of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination resignation, Employee may deliver a second Liquidity Notice to the Company and to Holdings directing Holdings to exercise its Repurchase Option as to the remaining Executive Units and Holdings shall repurchase such Executive Units, for cash, within thirty (30) days of employment other such notice from Employee; and (y) in the event the Company terminates this Agreement without Cause pursuant to Section 6.4, then, no later than payment of compensation earned to thirty (30) days after the date of termination such termination, Employee may deliver a Liquidity Notice to the Company and to Holdings directing Holdings to exercise its Repurchase Option as to all Executive Units and Holdings shall repurchase such Executive Units, for cash, within thirty (30) days of employment such notice from Employee. In conjunction with its obligations under this Section 6.5(b), the Company shall maintain a Xxxxxxxxxx Reserve Amount (as defined below) to be used in the repurchase of Employee's Executive Units as provided in this Section 6.5(b). Further, the Company shall, subject to applicable withholding taxes, distribute to the Employee his entire Account Balance under the Team Health, Inc. Equity Deferred Compensation Plan as of the date of Employee's termination; provided that Holdings' and the Company's obligations under this Section 6.5(b) are conditioned on Holdings and/or the Company being permitted to do so in compliance with all agreements to which either or both the Company and Holdings are a party to that relate to indebtedness for borrowed money, including without limitation, the Company's senior credit agreement and its senior subordinated note indenture; provided further that if either Holdings or the Company is not permitted to perform any of its obligations stated in this Section 6.5(b) by virtue of any such agreements, Holdings and/or the Company shall perform each of their respective obligations under this Section 6.5(b) to the extent permitted, and shall thereafter perform all obligations (or such portion thereof as permitted), on the first date that such agreements will permit performance, and Holdings and/or the Company shall use their best efforts to be permitted to so perform, including but not yet paidlimited to, using efforts similar to those used by Holdings and/or the Company in the past (e.g., seeking waivers, if necessary). As more fully Notwithstanding the foregoing, at all times until the last to occur of (x) the expiration of any right of Employee to deliver any Liquidity Notice and generally provided in Section 16 hereof, this Subsection 5(b(y) shall not be interpreted to deny the Employee any benefits to which he may be entitled Company's full performance of its obligations under any plan Liquidity Notices theretofore delivered to the Company, the Company will not:
(i) declare or arrangement pay any dividends, purchase, redeem, retire, defease or otherwise acquire for value any equity securities or any of its capital stock or any warrants, rights or options to acquire such equity securities or capital stock, now or hereafter outstanding, return any capital to its stockholders as such, make any distribution of assets, capital stock, warrants, rights, options, obligations or securities to its stockholders as such or permit any of its subsidiaries to purchase, redeem, retire, defease or otherwise acquire for value any equity securities or any capital stock of the Company applicable or any warrants, rights or options to the Employee. Likewiseacquire such equity securities or capital stock,
(ii) enter into or amend any agreement, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of including without limitation the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of deathsenior credit agreement (or enter into any restatement or refinancing thereto), disability or retirement at or after either age 62 with ten years of service or age 65.or
(ciii) Notwithstanding anything contained take any other action or fail to take any other action for the purpose of making it impossible for Holdings or the Company to perform its obligations stated in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.6.5(b),
Appears in 1 contract
Severance Compensation. If the EmployeeExecutive's employment is terminated ---------------------- during a Protected Periodterminates, the following severance provisions will apply:
(a) If the EmployeeExecutive's employment is terminated by the Company other than for Cause or is terminated by the Employee Executive for Good Reason, then, through the then for a period of one (1) year period commencing on the date of the EmployeeExecutive's termination of employment date (the "Payment Term") ), the Company shall:
(i) continue pay to pay the Employee's Executive within thirty (30) days following his termination of employment a single sum payment equal to one (1) times his annual base salary Base Salary in effect on the then prevailing amount and at the times specified in Subsection 3(a) hereof, date of such termination of employment (or if such annual base salary Base Salary has decreased during the one year period ending on the Employeedate of the Executive's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------);
(ii) continue pay to the Employee's participation Executive within thirty (30) days following his termination of employment a single sum payment equal to one (1) times his Annual Bonus at the highest rate in effect during the prior three year period, , plus the sum of any Annual Bonus Plan as provided in Subsection 3(b) hereof provided that earned but unpaid at the Company will:date of such termination of employment;
(Aiii) pay continue in effect the Employee a bonus medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life and long-term disability insurance protection under policies obtained by the Bonus Plan for Executive), being provided to the partial Executive immediately prior to the Executive's termination of employment, or if any of such benefits have decreased during the one year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the EmployeeExecutive's termination of employment, at the highest level in effect during such one year period;
(iv) continue to pay the automobile allowances as provided in Subsections 5(e) hereof; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iiiv) pay for executive outplacement services for the Employee Executive from a nationally recognized executive outplacement firm at a the level consistent with provided for the employee's positionmost senior executives, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the EmployeeExecutive's employment with the Company is terminated by reason of the Executive's death or Disability during the Employment Term, the Executive or his surviving spouse shall be entitled to receive (i) the Base Salary and Annual Bonus accrued and unpaid to the date of death or Disability, (ii) any amounts payable under any employee benefit plan of the Company in accordance with the terms of such plan, and (iii) if the Executive and/or his surviving spouse and dependents properly elect continued medical coverage in accordance with Code Section 4980B ("COBRA"), the Company shall pay the entire cost of the premiums for such continued medical coverage for the longer of (A) the maximum required period of coverage under Code Section 4980B(f) or (B) thirty-six (36) months.
(c) If the Executive's employment hereunder terminates due to the Employee's death, disability, termination is terminated by the Company for Cause or termination terminated by the Employee Executive other than for Good Reason, then no further compensation or benefits will be provided to the Employee Executive by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 19 hereof, this Subsection 5(b7(c) shall not be interpreted to deny the Employee Executive any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65Executive.
(cd) The Company's payments pursuant to this Section 7 that result in additional taxable income to the Executive shall be increased by a forty percent (40%) tax gross-up payment to the Executive for the purposes of covering federal, state and local income taxes on the amount of such payments.
(e) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 19 hereof, if the Employee Executive breaches any of his the Executive's obligations under Section 9 11 or 10 12 hereof, and such breach is not substantially cured in all material respects within thirty (30) days after the Board gives written notice thereof to the Executive, no further severance payments or other benefits will be payable to the Employee Executive under this Section 57.
Appears in 1 contract
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, following the Employee's employment is terminated by occurrence of a Change of Control, the Company terminates the Executive’s employment during the Period of Employment other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment (the "Payment Term") the Company shall:
(i) continue pursuant to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(aSection 4(a) hereof, or if such annual base salary has decreased during the one year period ending Executive terminates the Executive’s employment pursuant to Section 4(b) hereof, the Company will pay to the Executive an amount equal to the greater of (on an “after-tax basis”), (1) the Employee's Severance Payment specified in Section 5(a)(i) hereof (the “Severance Payment”) or (2) the maximum lesser amount (the “Maximum Amount”) that would not cause the Severance Payment to be made hereunder (when considered with all other payments made to the Executive under this Agreement or otherwise as a result of the termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
Executive’s employment that are subject to section 280G of the Code (ii“Parachute Payments”) continue to be subject to the Employee's participation in excise tax imposed by section 4999 of the Bonus Plan as provided in Subsection 3(b) hereof provided Code (the “Excise Tax”). In the event that it is determined that the Company will:
(AMaximum Amount would be the greater payment on an after-tax basis, the Severance Payment specified in Section 5(a)(i) pay will be reduced by the Employee a bonus under amount necessary to avoid application of the Bonus Plan for Excise Tax. The Severance Payment described in Section 5(a)(1) or the partial year period ending Maximum Amount described in Section 5(a)(2), as applicable, will be paid on the date that is six (6) months and one (1) day after the date that the Executive’s employment is terminated (the “Termination Date”):
(i) The payment payable to the Executive pursuant to this Section 5(a)(i) will be a lump sum payment in an amount equal to one hundred fifty percent (150%) of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied Base Pay otherwise payable to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, Executive during the remainder of the Period of Employment.
(ii) Not more than fifteen (15) days following the termination of the Executive’s employment, the Company agrees to notify the Executive in writing (A) whether the Severance Payment Termpursuant to Section 5(a)(i) when added to any other Parachute Payments exceeds an amount (the “299% Amount”) equal to 299% of the Executive’s “base amount” as defined in Section 280G(b)(3) of the Code, a bonus (B) the amount that is equal to the Employee's Target Annual Bonus Percentage299% Amount, multiplied by (C) whether the Employee's annual base salary Severance Payment described in Section 5(a)(1) or the Maximum Amount pursuant to Section 5(a)(2) is greater on an after-tax basis and (C) if the Maximum Amount in Section 5(a)(2) is the greater amount, the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall Severance Payment must be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;reduced to equal such Maximum Amount.
(iii) pay for executive outplacement services for The calculation of the Employee from a nationally recognized executive outplacement firm at a level consistent with 299% Amount, the employee's positiondetermination of whether the Severance Payment described in Section 5(a)(1) or the Maximum Amount pursuant to Section 5(a)(2) is greater on an after-tax basis and, provided that such outplacement services if the Maximum Amount in Section 5(a)(2) is the greater amount, the determination of how much the Severance Payment must be reduced in order to avoid application of the Excise Tax will be provided for a six made by the Company’s public accounting firm (6the “Accounting Firm”) month period commencing on the date of termination of employment regardless in accordance with Section 280G of the Payment Term; and
(iv) In lieu Code or any successor provision thereto. The costs of obtaining such determination will be borne by the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesCompany.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits There will be provided no right of set-off or counterclaim in respect of any claim, debt or obligation against any payment to the or benefit (including Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(bBenefits) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, Executive provided for in this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65Agreement.
(c) Notwithstanding anything contained If, following the occurrence of a Change of Control, the Company terminates the Executive’s employment during the Period of Employment other than pursuant to Section 4(a)(i) or 4(a)(ii) hereof, or if the Executive terminates the Executive’s employment pursuant to Section 4(b) hereof, all un-expired, un-forfeited and un-exercised stock options held by the Executive immediately prior to such termination of employment will become immediately vested and exercisable pursuant to their terms, regardless of whether or not the vesting/performance conditions set forth in this Agreement the relevant Stock Option Agreements shall have been satisfied in full. The rights of the Executive pursuant to the contraryterms and conditions of this Section 5(c) will be in addition to any rights granted to the Executive pursuant to the terms and conditions of any Stock Option Agreement evidencing the grant by the Company of stock options to the Executive, other than Section 16 hereofwhether granted before or after the execution and delivery of this Agreement.
(d) Without limiting the rights of the Executive at law or in equity, if the Employee breaches Company fails to make any payment required to be made hereunder on a timely basis, the Company will pay interest on the amount thereof at an annualized rate of his obligations under Section 9 or 10 hereofinterest equal to the then-applicable Prime Rate (as hereinafter defined) or, no further severance payments or other benefits if lesser, the highest rate allowed by applicable usury laws. As used herein, the term “Prime Rate” means the rate of interest published from time to time by the Wall Street Journal, and designated as the Prime Rate in the “Money Rates” section of such publication. If such publication describes the Prime Rate as a range of rates, for purposes of this Agreement, the Prime Rate will be payable to the Employee under this Section 5highest rate designated in such range.
Appears in 1 contract
Samples: Change of Control/Severance Agreement (Chaparral Steel CO)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's termination of employment remaining Employment Term as specified in Subsection 1(f) hereof, determined without regard to Subsection 1(f)(ii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(f)(ii) is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period; and
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of comparable size corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service with the Company or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee's obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Severance Compensation. If the Employee's Executive’s employment is terminated ---------------------- during a Protected Periodterminates, the following severance provisions will apply:
(a) If Except as otherwise provided in Subsection 7(a), if the Employee's Executive’s employment is terminated by the Company other than for Cause or Disability or is terminated by the Employee Executive for Good Reason, then, through the then for a period of one (1) year period commencing on the Executive’s termination date of the Employee's termination of employment (the "“Payment Term") ”), the Company shall:
(i) continue to pay to the Employee's Executive his annual base salary Base Salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending effect on the Employee's date of such termination of the Executive’s employment, less all withholding and similar requirements, payable in accordance with the Company’s normal payroll practice for other employees of the Company;
(ii) pay to the Executive within ninety (90) days following the Executive’s termination of employment a single sum payment equal to one (1) times the Executive’s Annual Bonus at the highest rate in effect during such one the prior three (3) year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------, plus the sum of any accrued Annual Bonus earned in the year prior to the termination of employment but unpaid at the date of such termination, less all withholding and similar requirements;
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(Aiii) pay to the Employee Executive the entire cost of the premiums for continued medical coverage in accordance with Code Section 4980(B) (“COBRA”) for a bonus under the Bonus Plan for the partial one-year period ending commencing on the date of the Employee's Executive’s termination of employment calculated employment, and continue in effect the long term disability protection and any life insurance protection being provided to the Executive immediately prior to the Executive’s termination of employment;
(iv) continue to pay the automobile allowances as if the Employee had continued to be employed provided in Subsections 4(e) hereof for the entire a one-year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of period commencing on the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's Executive’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iiiv) pay for executive outplacement services for the Employee Executive from a nationally recognized executive outplacement firm at a the level consistent with the employee's position, provided that such outplacement services will be provided for the most senior executives for a six (6) month one year period commencing on the date of termination of employment regardless Executive’s employment. Notwithstanding the foregoing, if the Company is a “public company” within the meaning of the Payment Term; and
Internal Revenue Code Section 409A (iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof“Section 409A”), at the Employee's request, submitted in writing any amounts payable to the Company within five (5) business days after Executive during the first six months and one day following the date of termination pursuant to this Section 6(a) which are “deferred compensation” under Section 409A and the Employee's Treasury Regulations thereunder, after taking into account any exceptions under Treasury Regulation Section 1.409A-1(b)(9)(iii), will be deferred until the date which is six months and one day following such termination, and if any such payments are required to be so deferred the first payment will be in an amount equal to the total amount to which the Executive would otherwise have been entitled during the period following the date of termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesemployment if deferral had not been required.
(b) If the Employee's Executive’s employment with the Company is terminated by reason of the Executive’s death or Disability during the Employment Term, the Executive or the Executive’s surviving spouse shall be entitled to receive (i) the Base Salary and Annual Bonus accrued in the year prior to the year in which the death or Disability occurs and unpaid to the date of death or Disability, (ii) any amounts payable under any employee benefit plan of the Company in accordance with the terms of such plan, and (iii) if the Executive and/or the Executive’s surviving spouse and dependents properly elect continued medical coverage in accordance with COBRA, the Company shall pay the entire cost of the premiums for such continued medical coverage for the longer of (A) the maximum required period of coverage under Code Section 4980B(f) or (B) thirty-six (36) months.
(c) If the Executive’s employment hereunder terminates due to the Employee's death, disability, termination is terminated by the Company for Cause or termination terminated by the Employee Executive other than for Good Reason, then no further compensation or benefits will be provided to the Employee Executive by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this This Subsection 5(b6(c) shall not be interpreted to deny the Employee Executive any benefits to which he the Executive may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65Executive.
(cd) If the Executive’s employment is terminated as a result of the nonrenewal of this Agreement by the Company, then for a period of one (1) year commencing on the Executive’s termination date, the Company shall continue to pay to the Executive his annual Base Salary in effect on the date of such termination of the Executive’s employment, less all withholding and similar requirements, payable in accordance with the Company’s normal payroll practice for other employees of the Company and no other severance payment obligations shall be payable to the Executive under this Section 6. If the Executive’s employment is terminated as a result of the nonrenewal of this Agreement by the Executive, then the termination shall be treated as a termination with Cause and no severance payment obligations shall be payable to the Executive under this Section 6 as a result of a non-renewal by Executive.
(e) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee Executive breaches any of his the Executive’s obligations under Section 9 10 or 10 11 hereof, no further severance payments or other benefits will be payable to the Employee Executive under this Section 56.
Appears in 1 contract
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(iii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(iii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as -------------------------------------------------------------------------------- Page 7 -------------------------------------------------------------------------------- provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice- presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii-------------------------------------------------------------------------------- Page 8 --------------------------------------------------------------------------------
(a) (ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his the Employee's obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's Upon termination of employment (for any reason, the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
Executive shall be entitled to: (A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on all Base Salary earned through the date of termination of employment regardless of the Payment Termto be paid according to Section 4; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described any Annual Bonuses, pro-rated, to be paid in Subsection 5(a)(iiaccordance with Section 5(a) shall be made at the same time above.; (C) all accrued but unused vacation time, and (d) reimbursement of all reasonable expenses as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesset forth in Section 8.
(b) If In the Employee's employment hereunder terminates due to the Employee's death, disability, event of a termination by the Company for Cause or termination without Cause, by the Employee other than Executive for Good ReasonReason or by the Executive within one hundred eighty days (180) days of the occurrence of a Change of Control (as defined below) and subject to the additional provisions of Section 11(d)(3), then no further compensation or benefits will be provided in addition to the Employee severance compensation set forth in Section 6(a), Executive shall also be entitled to the following enhanced separation benefits (“Enhanced Separation Benefits”): (i) the greater of Executive’s continued Base Salary through the balance of the Employment Period, as renewed, or ) twelve (12) months of Executive’s then Base Salary; (ii) continued participation in Company welfare benefit plans (including health benefits) on the same terms as immediately prior to termination and to be paid in full by the Company under for the period of time set forth in this Agreement following Section 6(b) (not to be less than twelve months of continuation of benefits) and (iii) immediate vesting of all stock options/equity awards.
(c) Upon termination of Executive’s continued benefits (either pursuant to Section 6(a) or 6(b) as the case may be), the Executive may continue coverage with respect to the Company’s group health plans as permitted by the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for himself and each of his “Qualified Beneficiaries” as defined by COBRA (“COBRA Coverage”). The Company shall reimburse the amount of any COBRA premium paid for COBRA Coverage timely elected by and for the Executive and any Qualified Beneficiary of the Executive, and not otherwise reimbursed, during the period that ends on the earliest of (x) the date of such termination of employment other than payment of compensation earned the Executive or the Qualified Beneficiary, as the case may be, ceases to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereofbe eligible for COBRA Coverage, this Subsection 5(b(y) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year consecutive eighteen (18) month period following the date of the Executive’s termination of employment and (z) the date the Executive or the Qualified Beneficiary, as a condition to receipt of a bonus thereunder for such year except in the cases of deathcase may be, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches is covered by another group health plan. To reimburse any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee COBRA premium payment under this Section 5paragraph, the Company must receive documentation of the COBRA premium payment within ninety (90) days of its payment.
Appears in 1 contract
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(ii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(ii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (’s annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee’s termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's ’s request, submitted in writing to the Company within five (5) business days after the date of the Employee's ’s termination of employment:
(A) the Company will pay the total of the Employee's ’s annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's ’s termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's ’s payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's ’s Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 6558.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, before the Contract Expiration Date, Employee's employment is terminated by the Company other than for Cause Subsidiary without cause or is terminated by the Employee for Good Reasongood reason, then, except as provided in Paragraph 12(b), 12(c), or 12(d), the Company shall cause to be paid and provided to Employee base salary at the highest monthly rate payable to Employee during the Contract Period and annual bonus awards as described in Paragraph 5, to be paid at the times provided in Paragraph 5 hereof through the one year period commencing on last to occur of (x) the expiration of six months after the effective date of the Employee's termination of employment termination, and (y) the Contract Expiration Date (such last-to-occur date is hereinafter referred to as the "Payment TermSeverance Benefits Termination Date") ); and the Company shallfollowing benefits for a period of twelve months following the Contract Expiration Date:
(i) continue coverage under the Company's medical insurance plan, short- term disability plan, long-term disability plan, salary continuation arrangement, disability benefit arrangement, and executive life insurance benefit (provided that [he][she] became eligible to pay participate therein prior to the date [his][her] employment is terminated), each as in effect on the Change in Control Date (or, if subsequently amended to increase benefits to Employee or [his][her] dependents, as so amended) and each as if Employee's annual base salary in employment had continued through the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year periodSeverance Benefits Termination Date; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------and
(ii) continue coverage and service credit under the Employee's participation Salaried Plan and any Excess Benefit Plan maintained in connection with the Bonus Salaried Plan as provided in Subsection 3(b) hereof provided under which [he][she] is eligible to participate so that the Company will:
(A) pay aggregate benefits payable to or with respect to the Employee a bonus under the Bonus Salaried Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to and any such Excess Benefit Plan will be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the aggregate benefits that would have been paid to or with respect to Employee under the Salaried Plan and any such Excess Benefit Plan if Employee's Target Annual Bonus Percentageemployment had continued through the Severance Benefits Termination Date. If any of the benefits to be provided under one or more of the plans, multiplied by agreements, or arrangements specified above cannot be provided through that plan, agreement, or arrangement to Employee following termination of [his][her] employment, the Company shall cause the full equivalent of such benefits to Employee's annual base salary in . For example, since it is not possible to provide additional service credit directly through the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses Salaried Plan, if Employee becomes entitled to an additional 18 months of service credit under the Bonus Salaried Plan are customarily payablepursuant to (ii) above, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay be required to cause payment to Employee, from its general assets or those of its Subsidiary, on each date on which Employee receives a payment from the total of Salaried Plan, a supplemental payment equal to the amount by which that particular payment under the Salaried Plan would have been increased if Employee's annual base salary total service credit under the Salaried Plan were 18 months greater than is actually the case. In addition, if in these circumstances any payments described in Subsection 5(a)(i) in a single sum within thirty (30) days become due under the Salaried Plan with respect to Employee following [his][her] death, the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan Company will be obligated to cause similar supplemental payments described in Subsection 5(a)(ii) shall with respect to Employee to be made at on the same time as dates on which payments are made with respect to Employee under the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposesSalaried Plan.
(b) Notwithstanding the foregoing provisions of Paragraph 15(a), the Company shall cause any benefit to which Employee becomes entitled pursuant to the provisions of Paragraph 8 or 12(a) under the Salaried Plan or the Excess Benefit Plan including, in the event Employee is not fully vested under the provisions of either, the present value of any otherwise forfeitable benefit thereunder, to be paid in a single sum to Employee as soon as practicable, but not more than thirty days following [his][her] termination of employment, with present value determination to be made based on actuarial factors for single sum payments set forth in the Salaried Pension Plan.
(c) If Employee becomes entitled to compensation and benefits pursuant to Paragraph 12(a), [he][she] shall use reasonable efforts to seek other employment, provided, however, that [he][she] shall not be required to accept a position of less importance and dignity or of substantially different character than that of [his][her] position with the Subsidiary, nor shall [he][she] be required to accept a position outside the geographic area in which [he][she] resides on the Change in Control Date. The Company's and the Subsidiary's obligations under items (i) and (ii) of Paragraph 12
(a) will be offset by payments and benefits received by Employee from another employer to the following extent:
(i) The obligation to pay any particular installment of base salary following Employee's employment hereunder terminates due to termination will be offset, on a dollar for dollar basis, by any base salary received by Employee from another employer before the Employee's death, disability, termination date on which the installment of base salary is payable by the Company or the Subsidiary.
(ii) To the extent that Employee is provided medical, dental, or short-term or long-term disability income protection benefits by another employer during any period, the Company will be relieved of its obligation to provide such benefits to Employee. For example, if a new employer provides Employee with a medical benefits plan that pays $500.00 for Cause or termination a specific claim made by Employee and the Employee other than Company's medical insurance plan would have paid $750.00 for Good Reasonthat claim, then the Company will be obligated to pay Employee $250.00 with respect to that claim. Other than as provided in this Paragraph 12(c), Employee shall have no further compensation duty to mitigate the amount of any payment or benefit provided for in this Agreement.
(d) If during any period in which Employee is entitled to payments or benefits under Paragraph 12
(a) Employee materially and willfully breaches [his][her] agreement with respect to confidential information set forth in Paragraph 13 hereof and such breach directly causes the Company or the Subsidiary substantial and demonstrable damage, then the Company will be provided to relieved of its obligations under Paragraph 12(a) hereof as of the Employee by first day of the Company under this Agreement month immediately following the date of such termination material breach.
(e) If Employee dies on or before the Severance Benefits Termination Date or, with respect to benefits, the Contract Expiration Date, and immediately before [his][her] death [he][she] is entitled to payments or benefits under Paragraph 12(a), the Company will be relieved of employment other than payment of compensation earned its obligations under Paragraph 12
(a) with respect to the date of termination of employment but not yet paid. As more fully base salary and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement bonus payments as of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last first day of the Companymonth immediately following the month in which Employee dies and thereafter the Company will cause to be provided to Employee's taxable year beneficiaries and dependents salary continuation payments, benefits under any Excess Benefits Plan (as supplemented by item (ii) of Paragraph 12(a)), and continuing medical and dental benefits to the same extent (subject to reduction for payments or benefits from a condition to receipt of a bonus thereunder for such year except new employer under Paragraph 12(c)) as if Employee's death had occurred while Employee was in the cases active employ of death, disability or retirement at or after either age 62 with ten years of service or age 65the Subsidiary.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b)(i) hereof (such remaining Employment Term calculated without regard to Subsection 1(b)(ii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (’s annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee’s termination of employment, at the highest level in effect during such one year period;
(iv) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with the employee's positionprovided for vice-presidents of major corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's ’s request, submitted in writing to the Company within five (5) business days after the date of the Employee's ’s termination of employment:
(A) the Company will pay the total of the Employee's ’s annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's ’s termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's ’s payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's ’s Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1(b) hereof, determined without regard to Subsection 1(b)(ii) hereof (such remaining Employment Term calculated without regard to Subsection 1(b)(ii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (’s annual base salary and bonus in accordance with Subsection 5(a)(v), is hereinafter referred to as the "“Payment Term") ”), the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof;
(ii) regardless of the achievement of financial targets established annually by the Board, pay the Employee an amount equal to one (1) year’s full Target Bonus for the Employee, such payment shall be made on the date that annual bonuses are normally paid by the Company to its senior executives; and
(iii) continue in effect any medical and dental coverage, any disability protection, any life insurance protection (including life insurance protection being paid for by the Employee) and car allowance hereunder being provided to the Employee immediately prior to the Employee’s termination of employment, or if any of such annual base salary has benefits have decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate level in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iiiiv) pay for executive outplacement services for the Employee from Drake, Beam & Xxxxx or a similar nationally recognized executive outplacement firm selected by the Company, such services shall be at a the level consistent with the employee's positionprovided for chief executive officers of similar size corporations, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and;
(ivv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's ’s request, submitted in writing to the Company within five twenty (520) business days after the date of the Employee's ’s termination of employment:
(A) , the Company will shall pay the total of the Employee's ’s annual base salary payments described in Subsection 5(a)(i) ), discounted for the time value of money using the then prime rate, plus the amount provided in Subsection 5(a)(ii), such payment shall be made in a single sum within thirty forty-five (3045) days following the Employee's ’s termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's death, disability, ’s termination by the Company for Cause Cause, due to the death or disability of the Employee, or due to the termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65Plan.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If If, before the Contract Expiration Date, Employee's employment is terminated by the Company other than for Cause without cause or is terminated by the Employee for Good Reasongood reason, then, except as provided in Paragraph 12(b), 12(c), or 12(d), the Company shall pay and provide to Employee the following compensation and benefits through the one year period commencing on last to occur of (x) the expiration of twenty-four months after the effective date of the Employee's termination of employment termination, and (y) the Contract Expiration Date (such last-to-occur date is hereinafter referred to as the "Payment TermSeverance Benefits Termination Date") the Company shall:):
(i) continue to pay the Employee's annual base salary in the then prevailing amount Base Salary and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, Annual Bonus at the highest rate payable to Employee during the Contract Period, to be paid at the times provided in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------Paragraph 5 hereof;
(ii) continue in lieu of the Employee's participation in opportunity to receive stock option grants during the Bonus Plan as provided in Subsection 3(b) hereof provided that period from the effective date of termination through the Severance Benefits Termination Date, the Company will:
will pay to Employee an amount in cash equal to the product of (A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date aggregate value of the Employee's termination of employment calculated as if the stock options granted to Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied with Respect to the Employee's annual base salary payable fiscal year ended immediately prior to the Change in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
Control and (B) thereaftera fraction, during the remainder numerator of which is the number of days from the effective date of termination through the Severance Benefits Termination Date and the denominator of which is 365; for this purpose, the value of the Payment Term, a bonus equal to stock options will be determined using the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereofBlack-Scholes option price model;
(iii) pay for executive outplacement services for coverage under the Employee from a nationally recognized executive outplacement firm at a level consistent with the employeeCompany's positionmedical, dental, insurance, short-term disability, long-term disability plans, and other Plans, as listed on Exhibit A, Items 7 through 14 (provided that such outplacement services will be provided for a six (6) month period commencing he became eligible to participate therein prior to the date his employment is terminated), each as in effect on the date of termination of Change in Control Date (or, if subsequently amended to increase benefits to Employee or his dependents, as so amended) and each as if Employee's employment regardless of had continued through the Payment TermSeverance Benefits Termination Date; and
(iv) In lieu coverage and service credit under the Salaried Plan and the Excess Benefit Plans maintained in connection with the Salaried Plan under which he is eligible to participate so that the aggregate benefits payable to or with respect to the Employee under the Salaried Plan and the Excess Benefit Plan will be equal to the aggregate benefits that would have been paid to or with respect to Employee under the Salaried Plan and the Excess Benefit Plans if Employee's employment had continued through the Severance Benefits Termination Date. If any of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereofbenefits to be provided under the Company's Plans cannot be provided through that Plan to Employee following termination of his employment, at the Employee's request, submitted in writing to the Company within five shall directly provide the full equivalent of such benefits to Employee. For example, since it is not possible to provide additional service credit directly through the Salaried Plan, if Employee becomes entitled to an additional 18 months of service credit under the Salaried plan pursuant to (5iv) business days after the date of the Employee's termination of employment:
(A) above, the Company will be required to pay to Employee, from its general assets, on each date on which Employee receives a payment from the total of Salaried Plan, a supplemental payment equal to the amount by which that particular payment under the Salaried Plan would have been increased if Employee's annual base salary total service credit under the Salaried Plan were 18 months greater than is actually the case by reason of this Agreement. In addition, if in these circumstances any payments described in Subsection 5(a)(i) in a single sum within thirty (30) days become due under the Salaried Plan with respect to Employee following his death, the Company will be obligated to make similar supplemental payments with respect to Employee on the dates on which payments are made with respect to Employee under the Salaried Plan. Furthermore, the provisions of this Agreement shall not affect the validity or enforceability of any other agreement between the Company and Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) , and the benefits provided under this Agreement shall be made at the same time as the additive to any other benefits promised to Employee under such other agreement. Moreover, this Agreement shall not operate to negate any other assurances provided to Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If Employee becomes entitled to compensation and benefits pursuant to Paragraph 12(a) he shall use reasonable efforts to seek other employment, provided, however, that he shall not be required to accept a position of less importance and dignity or of substantially different character than of his position with the Company or a position that would require Employee to engage in activity in violation of Employee's employment hereunder terminates due agreement with respect to noncompetition set forth in Paragraph 14 hereof nor shall he be required to accept a position outside the greater Cleveland area. The Company's obligations under item (i) and (ii) of Paragraph 12(a) will be offset by payments and benefits received by Employee from another employer to the following extent:
(i) The Company's obligation to pay any particular installment of base salary following Employee's deathtermination will be offset, disabilityon a dollar for dollar basis, termination by any cash compensation received by Employee from another employer before the date on which the installment of base salary is payable by the Company.
(ii) To the extent that Employee is provided medical, dental, or short-term or long-term disability income protection benefits by another employer during any period, the Company will be relieved of its obligation to provide such benefits to Employee. For example, if a new employer provides Employee with a medical benefits plan that pays $500.00 for Cause or termination a specific claim made by Employee and the Employee other than Company's medical insurance plan would have paid $750.00 for Good Reasonthat claim, then the Company will be obligated to pay Employee $250.00 with respect to that claim. Other than as provided in this Paragraph 12(b) Employee shall have no further compensation duty to mitigate the amount of any payment or benefit provided for in this Agreement.
(c) If during any period in which Employee is entitled to payments or benefits will be provided to the Employee by from the Company under this Agreement Paragraph 12(a):
(i) Employee materially and willfully breaches his agreement with respect to confidential information set forth in Paragraph 13 hereof and such breach directly causes the Company substantial and demonstrable damage; or
(ii) Employee materially and wilfully breaches his agreement with respect to noncompetition set forth in Paragraph 14 hereof and such breach directly causes the Company substantial and demonstrable damage; then the Company will be relieved of its obligations under paragraph 12(a) hereof as of the first day of the month immediately following the date of such termination material breach.
(d) If Employee dies on or before the Severance Benefits Termination Date and immediately before his death he is entitled to payments or benefits from the Company under Paragraph 12(a), the Company will be relieved of employment other than payment its obligations under item (i) of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(bParagraph 12(a) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement as of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last first day of the Companymonth immediately following the month in which Employee dies and thereafter the Company will provide to Employee's taxable year beneficiaries and dependents salary continuation payments, benefits under the Excess Benefits Plan (as supplemented by item (iii) of Paragraph 12(a), and continuing medical and dental benefits to the same extent (subject to reduction for payments or benefits from a condition to receipt of a bonus thereunder for such year except new employer under paragraph 12(b) as if Employee's death had occurred while Employee was in the cases active employ of death, disability or retirement at or after either age 62 with ten years of service or age 65the Company.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Nordson Corp)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on remaining Employment Term as specified in Subsection 1 (b) hereof, determined without regard to Subsection 1(b)(iii) hereof, (such remaining Employment Term calculated without regard to Subsection 1(b)(iii), and without regard to whether the date Employee elects accelerated payments of the Employee's termination of employment (annual base salary and bonus in accordance with Subsection 5(a)(vi), is hereinafter referred to as the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for by the Employee), being provided to the Employee immediately prior to the Employee's termination of employment, or if any of such benefits have decreased during the one year period ending on the Employee's termination of employment, at the highest level in effect during such one year period;
(iv) continue to pay the automobile allowance and the personal financial planning allowance as provided in Subsection 3(f) hereof;
(v) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a the level consistent with provided for the employee's positionmost senior executives, provided that such outplacement services will be provided for a six (6) month one year period commencing on the date of termination of employment regardless of the Payment Term; and.
(ivvi) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the -------------------------------------------------------------------------------- Page 9 -------------------------------------------------------------------------------- Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his the Employee's termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his the Employee's obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If the Employee's ’s employment is terminated ---------------------- during a Protected Periodterminated, the following severance provisions will apply:
(a) If If, during the term of this agreement, the Employee's ’s employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year for a period commencing on the date of the Employee's two (2) years after such termination of employment (the "“Payment Term"”) the Company shall:
(i) continue to pay the Employee's ’s annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's ’s termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------;
(ii) continue the Employee's ’s participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a prorated bonus under the Bonus Plan for the partial year period ending on the date of the Employee's ’s termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's ’s bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's ’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's ’s termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's ’s Target Annual Bonus Percentage, multiplied by the Employee's ’s annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus for the final partial year during the Payment Term shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;; and
(iii) pay continue in effect the medical and dental coverage, long and short-term disability protection, and any life insurance protection (including life insurance protection being paid for executive outplacement services for by the Employee), being provided to the Employee from a nationally recognized executive outplacement firm at a level consistent with immediately prior to the employee's positionEmployee’s termination of employment, provided that or if any of such outplacement services will be provided for a six (6) month benefits have decreased during the one year period commencing ending on the date of Employee’s termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereofemployment, at the Employee's request, submitted highest level in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described in Subsection 5(a)(ii) shall be made at the same time effect during such one year period as long as the Employee's payment under Subsection 5(a)(vi)(A) but shall be calculated using Employee continues to make the Employee's Target Annual Bonus Percentage for all calculation purposesapplicable employee contributions in effect during the Payment Term based on the most senior level contribution rate.
(b) If the Employee's ’s employment hereunder terminates due to the Employee's ’s death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following the date of such termination of employment other than payment of compensation earned to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 15 hereof, this Subsection 5(b) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's ’s taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability death or retirement at or after either age 62 with ten years of service or age 65disability.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 15 hereof, if the Employee breaches any of his the Employee’s obligations under Section 8 or 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
(d) If the Employee retires from the Company after July 22, 2010, the Company will pay the Employee a prorated bonus under the Bonus Plan for the partial year period ending on the date of the Employee’s retirement from employment calculated as if the Employee had continued to be employed for the fiscal entire year, except that the Employee’s bonus percentage (calculated in accordance with the Bonus Plan in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the portion of the Employee’s annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period commencing at the start of the fiscal year in which the Employee retires and ending on the Employee’s retirement date.
Appears in 1 contract
Samples: Employment Agreement (Sealy Corp)
Severance Compensation. If 4.1 Severance Compensation in the EmployeeEvent of a Termination Upon a Change in ------------------------------------------------------------------------ Control. In the event the Executive's employment is terminated ---------------------- during in a Protected PeriodTermination ------- Upon a Change in Control, the following Executive shall be paid as severance provisions will apply:
compensation (a"Severance Compensation") If her Base Salary (at the Employee's employment is terminated by rate payable at the Company other than time of such termination), for Cause a period of the lesser of the remaining portion of the Initial Term or is terminated by the Employee for Good Reason, then, through the one year period commencing on twelve (12) months from the date of such termination provided. Notwithstanding anything in this Section to the Employee's termination of employment (contrary, the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary Executive may in the then prevailing amount and at the times specified in Subsection 3(a) hereofExecutive's sole discretion, or if such annual base salary has decreased during the one year period ending on the Employee's termination by delivery of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
(A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied notice to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on the date of termination of employment regardless of the Payment Term; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum Corporation within thirty (30) days following a Termination Upon a Change in Control, elect to receive from Compensation a lump sum Severance Compensation payment by bank cashier's check equal to the Employeepresent value of the flow of cash payments that would otherwise be paid to the Executive pursuant to this Section. The Executive shall also be entitled to an accelerated vesting of any awards granted to the Executive under the Corporation's termination Stock Option Plan to the extent provided in the stock option agreement entered into at the time of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employmentgrant. The Executive shall continue to accrue retirement benefits and shall continue to enjoy any benefits under any plans of the Corporation in which the Executive is a participant to the full extent of the Executive's rights under such plans, including any prerequisites provided under this Agreement, though the remaining term of this Agreement; andprovided, however, that the benefits under any such plans of the Corporation in which the Executive is a participant, including any such prerequisites, shall cease upon re-employment by a new employer.
(B) his Bonus Plan payments described 4.2 Severance Compensation in Subsection 5(a)(ii) the Event of a Termination Other Than for ------------------------------------------------------------------------ Cause. In the event the Executive's employment is terminated in a Termination ----- Other Than for Cause, the Executive shall be made paid as Severance Compensation her Base Salary (at the same rate payable at the time as of such termination), for a period of the Employee's payment under Subsection 5(a)(vi)(Alesser of the remaining portion of the Initial Term or twelve (12) but shall be calculated using the Employee's Target Annual Bonus Percentage for all calculation purposes.
(b) If the Employee's employment hereunder terminates due to the Employee's death, disability, termination by the Company for Cause or termination by the Employee other than for Good Reason, then no further compensation or benefits will be provided to the Employee by the Company under this Agreement following months from the date of such termination of employment other than payment termination, on the dates specified in Section 3.1; provided, however, that if the Executive is employed by a new employer during such period, the Severance Compensation payable to the Executive during such period will be reduced by the amount of compensation earned that the Executive is receiving from the new employer. Executive is under no obligation to mitigate the amount owed by the Corporation to the date of termination of employment but not yet paidExecutive pursuant to this Section by seeking other employment. As more fully and generally provided in Section 16 hereof, this Subsection 5(b) The Executive shall not be interpreted to deny the Employee any benefits to which he may be entitled under to an accelerated vesting of any plan or arrangement of the Company applicable awards granted to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus Executive under the Bonus Corporation's Stock Option Plan following his termination of employment except as to the extent provided in the Bonus Plan which requires employment on stock option agreement entered into at the last day time of the Company's taxable year as a condition to receipt of a bonus thereunder for such year except in the cases of death, disability or retirement at or after either age 62 with ten years of service or age 65grant.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee under this Section 5.
Appears in 1 contract
Samples: Employment Agreement (Donobi Inc)
Severance Compensation. If the Employee's employment is terminated ---------------------- during a Protected Period, the following severance provisions will apply:
(a) If the Employee's employment is terminated by the Company other than for Cause or is terminated by the Employee for Good Reason, then, through the one year period commencing on the date of the Employee's Upon termination of employment (for any reason, the "Payment Term") the Company shall:
(i) continue to pay the Employee's annual base salary in the then prevailing amount and at the times specified in Subsection 3(a) hereof, or if such annual base salary has decreased during the one year period ending on the Employee's termination of employment, at the highest rate in effect during such one year period; -------------------------------------------------------------------------------- Page 7 --------------------------------------------------------------------------------
(ii) continue the Employee's participation in the Bonus Plan as provided in Subsection 3(b) hereof provided that the Company will:
Executive shall be entitled to: (A) pay the Employee a bonus under the Bonus Plan for the partial year period ending on the date of the Employee's termination of employment calculated as if the Employee had continued to be employed for the entire year except that the Employee's bonus percentage (calculated at the time and in the manner customary as of the date of this Agreement, but disregarding the termination of employment of the Employee) shall be applied to the Employee's annual base salary payable in accordance with Subsection 3(a) hereof for the partial year period ending on the Employee's termination of employment; and
(B) thereafter, during the remainder of the Payment Term, a bonus equal to the Employee's Target Annual Bonus Percentage, multiplied by the Employee's annual base salary in the amount specified in Subsection 5(a)(i) payable during the year (or portion thereof) for which the bonus is being calculated; with such amounts being payable when bonuses under the Bonus Plan are customarily payable, except that the final bonus shall be payable with the final payment of the annual base salary under Subsection 5(a)(i) hereof;
(iii) pay for executive outplacement services for the Employee from a nationally recognized executive outplacement firm at a level consistent with the employee's position, provided that such outplacement services will be provided for a six (6) month period commencing on all Base Salary earned through the date of termination of employment regardless of the Payment Termto be paid according to Section 4; and
(iv) In lieu of the payments described in Subsections 5(a)(i) and 5(a)(ii) hereof, at the Employee's request, submitted in writing to the Company within five (5) business days after the date of the Employee's termination of employment:
(A) the Company will pay the total of the Employee's annual base salary payments described in Subsection 5(a)(i) in a single sum within thirty (30) days following the Employee's termination of -------------------------------------------------------------------------------- Page 8 -------------------------------------------------------------------------------- employment; and
(B) his Bonus Plan payments described any Annual Bonuses, pro-rated, to be paid in Subsection 5(a)(iiaccordance with Section 5(a) shall be made at the same time and Section 5(b) above (unless termination is for Cause, as the Employee's payment under Subsection 5(a)(vi)(Adefined below) ; (C) all accrued but shall be calculated using the Employee's Target Annual Bonus Percentage for unused vacation time, and (d) reimbursement of all calculation purposesreasonable expenses as set forth in Section 8.
(b) If Upon termination of employment by Company for any reason other than for cause (“Cause”) as defined in Section 11(c), or upon termination of employment by Executive for good reason (“Good Reason”) as defined in Section 11(d)(1), Executive shall be entitled to receipt of all vested and unvested shares contemplated in the Employee's employment hereunder terminates due to Executive Award in accord with the Employee's death, disability, any vesting schedule as if no termination occurred.
(c) In the event of a termination by the Company for Cause or termination without Cause, by the Employee other than Executive for Good ReasonReason or by the Executive within one hundred eighty days (180) days of the occurrence of a Change of Control (as defined below) and subject to the additional provisions of Section 11(d)(3), then no further compensation or benefits will be provided in addition to the Employee severance compensation set forth in Section 6(a) and 6(b), Executive shall also be entitled to the following enhanced separation benefits (“Enhanced Separation Benefits”): (i) the greater of Executive’s continued Base Salary through the balance of the Employment Period, as renewed, or twenty-four (24) months of Executive’s then Base Salary; (ii) continued participation in Company welfare benefit plans (including health benefits) on the same terms as immediately prior to termination and to be paid in full by the Company under for the period of time set forth in this Agreement following Section 6(c) (not to be less than twelve (12) months of continuation of benefits) and (iii) immediate vesting of all stock options/equity awards.
(d) Upon termination of Executive’s continued benefits (either pursuant to Section 6(a), 6(b) or 6(c) as the case may be), the Executive may continue coverage with respect to the Company’s group health plans as permitted by the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for himself and each of his “Qualified Beneficiaries” as defined by COBRA (“COBRA Coverage”). The Company shall reimburse the amount of any COBRA premium paid for COBRA Coverage timely elected by and for the Executive and any Qualified Beneficiary of the Executive, and not otherwise reimbursed, during the period that ends on the earliest of (x) the date of such termination of employment other than payment of compensation earned the Executive or the Qualified Beneficiary, as the case may be, ceases to the date of termination of employment but not yet paid. As more fully and generally provided in Section 16 hereofbe eligible for COBRA Coverage, this Subsection 5(b(y) shall not be interpreted to deny the Employee any benefits to which he may be entitled under any plan or arrangement of the Company applicable to the Employee. Likewise, this Subsection 5(b) shall not be interpreted to entitle the Employee to a bonus under the Bonus Plan following his termination of employment except as provided in the Bonus Plan which requires employment on the last day of the Company's taxable year consecutive eighteen (18) month period following the date of the Executive’s termination of employment and (z) the date the Executive or the Qualified Beneficiary, as a condition to receipt of a bonus thereunder for such year except in the cases of deathcase may be, disability or retirement at or after either age 62 with ten years of service or age 65.
(c) Notwithstanding anything contained in this Agreement to the contrary, other than Section 16 hereof, if the Employee breaches is covered by another group health plan. To reimburse any of his obligations under Section 9 or 10 hereof, no further severance payments or other benefits will be payable to the Employee COBRA premium payment under this Section 5paragraph, the Company must receive documentation of the COBRA premium payment within ninety (90) days of its payment.
Appears in 1 contract
Samples: Executive Employment Agreement (Red Cat Holdings, Inc.)
