Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall: (a) Pay the Executive a lump-sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of: (i) The sum of: (A) the Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below), multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the date of Termination occurs through and including the date of Termination, and the denominator of which is three hundred sixty-five (365); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination; (ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and (iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service. (b) Continue to provide the Executive (and, if applicable, the Executive’s dependents), for a twenty-four (24) month period following the date of Termination, with the same level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that if the Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder.
Appears in 4 contracts
Samples: Change in Control Agreement (First American Corp), Change in Control Agreement (First American Corp), Change in Control Agreement (First American Corp)
Severance Payments and Benefits. Subject (a) In lieu of any other cash severance payments to which the Executive may otherwise be entitled (and which other cash severance payments the Executive hereby expressly waives), and subject to the provisions regarding cutback of paragraph 8 benefits in certain circumstances as expressly provided in Section 6(h) below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay shall pay or provide to the Executive the following amounts (the "Severance Payments") upon the occurrence of a lump-sum payment in cash no later than ten (10) business days after Covered Termination during the date of Termination equal to the sum ofProtected Period:
(i) The sum of: An amount equal to two (2) times the amount of Executive's effective annual base salary rate, as in effect immediately prior to a Change of Control or the Date of Termination (as defined in Section 5(b), below), whichever amount is higher;
(ii) an amount equal to the average annual bonus earned by the Executive under the Company's cash incentive bonus plan in respect of the three fiscal years of the Company ending prior to (x) the date on which a Change of Control occurred or (y) the date on which the Date of Termination occurred, whichever amount is higher;
(iii) an amount equal to the Executive's annual bonus earned or accrued in respect of any prior fiscal year of the Company but not yet paid as of the Date of Termination; and
(iv) an amount equal to the product of (x) the greatest of (A) the Executive’s base salary through and including 's target bonus opportunity under the date of Termination and any Company's cash incentive bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus plan for the fiscal year in which the date Date of Termination occurs in an amount equal to: occurs; or (1B) the Executive’s Bonus Amount average bonus the Executive earned for the three (as defined below)3) fiscal years preceding the fiscal year in which the Change in Control occurred, multiplied by (2y) a fraction, the numerator of which is the number of days months and partial months expired in the fiscal year of the Company in which the date Date of Termination occurs occurs, through and including the date Date of Termination, and the denominator of which is three hundred sixty-five twelve (36512); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue In case of a Covered Termination during the Protected Period, in addition to the payments provided for in Section 4(a) above, the Company shall, during the period ending twenty four (24) months after the month in which the Date of Termination occurs, arrange at the Company's sole expense to provide the Executive (andand his/her dependents with life, if applicablemedical, the Executive’s dependents)dental, for a twenty-four (24) month period following the date of Terminationhealth, with the same and disability insurance benefits at least equal, in type and level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by coverage, to those which the Executive for such benefits) as existed and his/her dependents were receiving immediately prior to the date Notice of Termination (orwithout, if more favorable however, giving any effect to any reduction in such benefits subsequent to a Change in Control). Benefits otherwise receivable by the Executive pursuant to this Section 4(b) shall be reduced to the Executiveextent that comparable benefits equal in type and level of coverage are actually received by the Executive from, or made available to the Executive by, a subsequent employer without greater cost to him/her than as provided by the Company during such 24-month period (and any such benefits and terms and conditions existed immediately prior received by or made available to the Change of ControlExecutive shall be reported to the Company by the Executive). In addition, provided, in the event that if the Executive cannot and/or his/her dependents are ineligible under the terms of any of the Company's plans to continue to participate in the Company plans providing such benefitsbe so covered, the Company shall otherwise provide such benefits to the Executive a lump sum payment (determined on a present value basis using the interest rate provided for in Section 1274(b)(2)(B) of the Internal Revenue Code on the same after-tax basis Date of Termination) in such amount, after taxes, that shall be equal to the cost to the Executive of procuring such coverage for such period.
(c) In the case of a Covered Termination during the Protected Period (i) any unvested amount credited to Executive's bookkeeping account under the Company's Supplemental Executive Retirement Plan as if continued participation had been permittedin effect on the date hereof, and further provided as the same may be amended prior to any Change of Control ("SERP"), will become fully vested as of the Date of Termination, and in such event such bookkeeping account shall be increased as of the Date of Termination by the aggregate amount of expenses eligible the unvested portion of any account maintained for reimbursement during Executive under any of the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period Company's "qualified" retirement plans as of the Executive’s eligibility, but only 's date of termination of employment; and (ii) Executive's SERP account shall be distributed to the extent that Executive as provided under the Company reimburses terms of the Executive for any increased cost SERP and provides any additional benefits necessary to give the Executive the benefits provided hereunderin accordance with Executive's distribution election then in effect.
Appears in 3 contracts
Samples: Executive Termination Benefits Agreement (Claiborne Liz Inc), Executive Termination Benefits Agreement (Claiborne Liz Inc), Executive Termination Benefits Agreement (Claiborne Liz Inc)
Severance Payments and Benefits. Subject to the provisions of paragraph 8 9 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 5 above, the Company shall:
(a) Pay the Executive a lump-sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:
(i) The sum of: (A) the Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below), multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the date of Termination occurs through and including the date of Termination, and the denominator of which is three hundred sixty-five (365); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a7(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A of the Code and provided the Executive is a “Specified Employee” (as defined under Code Section 409A409A of the Code), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue to provide the Executive (and, if applicable, the Executive’s dependents), for a twenty-four (24) month period following the date of Termination, with the same level of benefits described in paragraph 4(d5(d) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that if the Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder.
Appears in 2 contracts
Samples: Change in Control Agreement (First American Corp), Change in Control Agreement (First American Corp)
Severance Payments and Benefits. Subject A. If a Change in Control occurs and within a period of twenty-four (24) months thereafter, Executive incurs a Separation from Service on account of (i) an involuntary termination by the Company for reasons other than death, Disability or Cause, or (ii) a voluntary termination elected by the Executive for Good Reason, then subject to (A) Executive signing and not revoking a separation and general release agreement (the provisions of paragraph 8 “Release”) in a form provided by the Company as may be in use from time to time, and (B) Section 4 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, Executive shall (and the Company shall:(or any successor thereto) shall pay, award and/or provide):
(a1) Pay the Executive receive a lump-sum cash severance payment in cash no later than ten (10) business days after the date of Termination an amount equal to the sum of:
of (ia) The sum of: one times (A1x) Executive’s Annual Compensation; (b) the product of (x) Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below)Long-term Incentive Award Value, multiplied by (2y) a fraction, the numerator of which is the number of days in full and partial calendar months between January 1 of the fiscal year in which of Separation from Service and the date of Termination occurs through and including the date of TerminationExecutive’s Separation from Service (provided, however, that such numerator shall not exceed six (6)) and the denominator of which is three hundred sixty-five twelve (36512); and (Cc) accrued the product of (x) the greater of (A) Executive’s target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive’s Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and unpaid vacation pay through partial calendar months between January 1 of the year of Separation from Service and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to Separation from Service and the date denominator of Terminationwhich is twelve (12); and
(iii2) An amount equal to receive twelve (12) months of continued coverage under the product Company’s group health plans (based on the level of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding coverage in effect on the provisions date of this paragraph 6(athe Executive’s Separation from Service), at the Company’s expense, subject to the Executive’s timely election of continuation coverage under the COBRA, it being understood that (a) in the event that the Executive becomes eligible to receive substantially similar or improved medical, dental or vision benefits from a subsequent employer (whether or not the Executive accepts such benefits), the Company’s obligations under this Section 3(a)(2) shall immediately cease, (b) the Executive will notify the Company of his eligibility for such benefits from a subsequent employer within thirty (30) days of such eligibility and (c) in the event that the Company’s making payments under this Section 3(a)(2) would violate nondiscrimination rules or result in the imposition of penalties under the PPACA, the parties agree to reform this Section 3(a)(2) in such manner as is necessary to comply with tax laws and the PPACA, as applicable.
(3) become fully vested in all Company equity and long-term incentive awards granted to Executive (including, but not limited to, and all stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units, and all other stock and cash-based long-term incentive awards) to the extent that such vesting is based on service with the Company. With respect to any amounts which constitute a deferral performance shares and performance unit awards, (a) the final number of compensation subject to Code Section 409A units and/or shares payable under such awards shall only be determined in accordance with the terms and provided conditions of the Executive is a “Specified Employee” (as defined under Code Section 409A)respective grant agreement governing such award, such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
and accordingly, (b) Continue to provide distribution of such awards can only take place following such share and/or unit amount determination. Notwithstanding the Executive (and, if applicableforegoing, the Executive’s dependentsfull and immediate vesting of any restricted stock units, performance shares, performance units, shall not change the payment date thereof or otherwise apply to the extent it would result in adverse tax consequences under Section 409A of the Code; and
(4) notwithstanding anything to the contrary in the respective award agreement(s), for a be entitled to exercise any stock options or stock appreciation rights until the expiration of twenty-four (24) month months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right; provided, however, that, if any stock option or stock appreciation right is terminated or cashed-out in connection with a Change in Control, the Executive shall receive a lump-sum cash payment equal to the time value (i.e., under the Black Scholes option pricing model) of such stock options or stock appreciation rights inclusive of the economic value for the period of twenty-four (24) months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right.
B. If Executive is not a Specified Employee, all payments made to Executive under Section 3(a) immediately above shall be made on the sixtieth (60th) calendar day following Executive’s Separation from Service, provided that Executive’s Release must be effective and not revocable on the date payment is to be made in order to receive such payments. If Executive is a Specified Employee, to the extent required to comply with Section 409A of the Code, payments made under Section 3(a) immediately above shall be made within ten (10) calendar days following the date following the first (1st) day of Termination, with the same level of benefits described in paragraph 4(dseventh (7th) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to month after the date of Termination (orExecutive’s Separation from Service, if more favorable provided that no such payment shall be made to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that Executive if the Executive canRelease has not continue to participate in become effective as of the Company plans providing such benefits, six (6)-month anniversary of the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount date of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits Separation from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunderService.
Appears in 2 contracts
Samples: Employment Agreement (Alphatec Holdings, Inc.), Employment Agreement (Alphatec Holdings, Inc.)
Severance Payments and Benefits. Subject to the provisions of ------------------------------- paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay pay the Executive a lump-lump sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:
(i) The the sum of: of (A) the Executive’s 's base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; , (B) a pro rata portion of the Executive’s 's annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: to (1) the Executive’s 's Bonus Amount (as defined below), multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the date of Termination occurs through and including the date of Termination, and the denominator of which is three hundred sixty-five (365); , (C) any compensation previously deferred by the Executive other than pursuant to a tax-qualified plan (together with any interest and earnings thereon), (D) accrued and unpaid vacation pay through and including the date of Termination; Termination and (DE) unreimbursed business expenses through and including the date of Termination;
(ii) An an amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s 's annual salary in effect immediately prior to the date of Termination; and
(iii) An an amount equal to the product of the Applicable Multiple and the Executive’s 's Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.and
(b) Continue continue to provide the Executive (and, if applicable, the Executive’s dependents's dependent's), for a twenty-four (24) 24 month period following the date of Termination, with the same level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that that, if the Executive cannot -------- continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s 's eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder.
Appears in 2 contracts
Samples: Change in Control Agreement (First American Financial Corp), Change in Control Agreement (First American Financial Corp)
Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay shall pay the Executive a lump-sum payment in cash no later than ten (10) business days after the date as soon as practicable following any termination of Termination equal to the sum of:
(i) The sum ofemployment: (A1) the Executive’s base salary through and including the date of Termination termination of employment and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B2) accrued and unpaid vacation pay through and including the date of termination of employment; and (3) unreimbursed business expenses through and including the date of termination of employment. In addition, in the event the termination of employment is a Termination, in lieu of the amount otherwise payable under paragraph 4 above and subject to the provisions of paragraph 8 below, the Company shall:
(a) Pay the Executive a lump-sum payment in cash in the month following the month in which the date of Termination occurs equal to the sum of:
(i) Unless a greater amount is provided for under the Company’s annual incentive compensation plan, a pro rata portion of the Executive’s target annual cash bonus amount established for the fiscal year in which the date of Termination occurs in an under the Company’s annual incentive compensation plan, calculated by multiplying such target annual bonus amount equal to: (1) the Executive’s Bonus Amount (as defined below), multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the date of Termination occurs through and including the date of Termination, and the denominator of which is three hundred sixty-five (365); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” Amount (as defined under Code Section 409Abelow), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.;
(b) Continue Subject to provide the Executive (and, if applicable, the Executive’s dependents), for a twenty-four (24i) month period following the date continued payment of Termination, with the same level percentage of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by applicable premiums as the Executive for such benefits) as existed was paying immediately prior to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed the percentage of the premiums the Executive was paying immediately prior to the Change in Control) and (ii) election to receive continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act or any applicable similar state law (“COBRA”), pay or reimburse the Executive for the Executive’s premiums charged to continue medical and dental coverage pursuant to COBRA for the Executive (and, if applicable, the Executive’s dependents), during the [eighteen (18); twenty-four (24); thirty-six (36)] month period commencing with continuation coverage for the month following the month in which the date of Control)Termination occurs, provided, that if the Executive canis not continue eligible to participate in receive, or if the Company plans providing such benefitsis not able to provide, continuation coverage under COBRA for any month during the continuation period, the Company shall otherwise provide such benefits pay the Executive a cash payment equal to its portion of the applicable COBRA premiums on the same an after-tax basis as if continued participation had been permitted, and further provided (with such payment to be made in the amount of expenses eligible same month for reimbursement during which the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable yearcontinuation coverage was otherwise to be provided) . Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare medical and dental benefits from such employeremployer during any month in the [eighteen (18); twenty-four (24); thirty-six (36)] month continuation period provided for by this paragraph, the welfare Company shall have no obligation to pay, reimburse or otherwise provide the Executive with continuation coverage for any such month. Notwithstanding the provisions of this paragraph 6, with respect to any payments or benefits described in this Agreement which constitute a deferral of compensation subject to Section 409A of the Code and provided the Executive is a “Specified Employee” (as defined under Section 409A of the Code) as of the date of Termination, such payments and benefits shall not be secondary paid to such benefits during the period Executive until the earlier of (i) the date which is six (6) months after the Executive’s Separation from Service for any reason other than death, or (ii) the date of the Executive’s eligibility, but only death. Any amounts otherwise payable to the extent Executive upon or in the six (6) month period following the Executive’s Separation from Service that are not so paid by reason of this paragraph shall be paid (without interest) as soon as practicable (and in all events within ten (ten) business days) after the date that is six (6) months after the Executive’s Separation from Service (or, if earlier, as soon as practicable, and in all events within ten (10) business days, after the date of the Executive’s death). As a condition precedent to any Company reimburses obligation to the Executive for any increased cost pursuant to sections (a) and provides any additional benefits necessary to give (b) of this paragraph 6, the Executive shall, upon or promptly following the benefits provided hereunderdate of Termination (and, in all events, within twenty one (21) days of), execute a general release agreement on substantially the same form attached to the employment agreement between the Executive and the Company, and such release agreement shall have not been revoked by the Executive pursuant to any revocation rights afforded by applicable law.
Appears in 1 contract
Severance Payments and Benefits. Subject (a) In lieu of any other cash severance payments to which the Executive may otherwise be entitled (and which other cash severance payments the Executive hereby expressly waives), and subject to the provisions regarding cutback of paragraph 8 benefits in certain circumstances as expressly provided in Section 6(h) below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay shall pay or provide to the Executive the following amounts (the "Severance Payments") upon the occurrence of a lump-sum payment in cash no later than ten (10) business days after Covered Termination during the date of Termination equal to the sum ofProtected Period:
(i) The sum of: An amount equal to three (3) times the amount of Executive's effective annual base salary rate, as in effect immediately prior to a Change of Control or the Date of Termination (as defined in Section 5(b), below), whichever amount is higher;
(ii) an amount equal to three (3) times the average annual bonus earned by the Executive under the Company's cash incentive bonus plan in respect of the three fiscal years of the Company ending prior to (x) the date on which a Change of Control occurred or (y) the date on which the Date of Termination occurred, whichever amount is higher;
(iii) an amount equal to the Executive's annual bonus earned or accrued in respect of any prior fiscal year of the Company but not yet paid as of the Date of Termination; and
(iv) an amount equal to the product of (x) the greatest of (A) the Executive’s base salary through and including 's target bonus opportunity under the date of Termination and any Company's cash incentive bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus plan for the fiscal year in which the date Date of Termination occurs in an amount equal to: occurs; or (1B) the Executive’s Bonus Amount average bonus the Executive earned for the three (as defined below)3) fiscal years preceding the fiscal year in which the Change in Control occurred, multiplied by (2y) a fraction, the numerator of which is the number of days months and partial months expired in the fiscal year of the Company in which the date Date of Termination occurs occurs, through and including the date Date of Termination, and the denominator of which is three hundred sixty-five twelve (36512); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue to provide In case of a Covered Termination during the Executive (andProtected Period, if applicable, the Executive’s dependents), for a twenty-four (24) month period following the date of Termination, with the same level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior addition to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that if the Executive cannot continue to participate payments provided for in the Company plans providing such benefitsSection 4(a) above, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permittedshall, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period ending thirty six (36) months after the month in which the Date of Termination occurs, arrange at the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder.Company's sole expense to
Appears in 1 contract
Samples: Executive Termination Benefits Agreement (Claiborne Liz Inc)
Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay the Executive a lump-sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:
(i) The sum of: (A) the Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below), multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the date of Termination occurs through and including the date of Termination, and the denominator of which is three hundred sixty-five (365); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A of the Code and provided the Executive is a “Specified Employee” (as defined under Code Section 409A409A of the Code), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue to provide the Executive (and, if applicable, the Executive’s dependents), for a twenty-four (24) month period following the date of Termination, with the same level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that if the Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits (or the cash-equivalent thereof) on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder.
Appears in 1 contract
Samples: Change in Control Agreement (First American Financial Corp)
Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:SCI:4226014.2
(a) Pay If a Change in Control occurs and within a period of twenty-four (24) months thereafter, Executive incurs a Separation from Service on account of (i) an involuntary termination by the Company for reasons other than death, Disability or Cause, or (ii) a voluntary termination elected by the Executive for Good Reason, then subject to (A) Executive signing and not revoking a separation and general release agreement (the “Release”) in a form provided by the Company as may be in use from time to time, and (B) Section 4 below, Executive shall (and the Company (or any successor thereto) shall pay, award and/or provide):
(1) receive a lump-sum cash severance payment in cash no later than ten (10) business days after the date of Termination an amount equal to the sum of:
of (ia) The sum of: two times (A2x) Executive's Annual Compensation; (b) the product of (x) Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below)'s Long-term Incentive Award Value, multiplied by (2y) a fraction, the numerator of which is the number of days in full and partial calendar months between January 1 of the fiscal year in which of Separation from Service and the date of Termination occurs through and including the date of TerminationExecutive's Separation from Service (provided, however, that such numerator shall not exceed six (6)) and the denominator of which is three hundred sixty-five twelve (36512); and (Cc) accrued the product of (x) the greater of (A) Executive's target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive's Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and unpaid vacation pay through partial calendar months between January 1 of the year of Separation from Service and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) Executive's Separation from Service and the Executive’s annual salary in effect immediately prior to the date denominator of Terminationwhich is twelve (12); and
(iii2) An amount equal receive eighteen (18) months of continued coverage under the Company's group health plans (based on the level of the Executive's coverage in effect on the date of the Executive's Separation from Service), at the Company's expense, subject to the product Executive's timely election of continuation coverage under the Applicable Multiple COBRA, it being understood that (a) in the event that the Executive becomes eligible to receive substantially similar or improved medical, dental or vision benefits from a subsequent employer (whether or not the Executive accepts such benefits), the Company's obligations under this Section 3(a)(2) shall immediately cease, (b) the Executive will notify the Company of his eligibility for such benefits from a subsequent employer within thirty (30) days of such eligibility and (c) in the event that the Company's making payments under this Section 3(a)(2) would violate nondiscrimination rules or result in the imposition of penalties under the PPACA, the parties agree to reform this Section 3(a)(2) in such manner as is necessary to comply with tax laws and the Executive’s Bonus Amount; Notwithstanding PPACA, as applicable.
(3) become fully vested in all Company equity and long-term incentive awards granted to Executive (including, but not limited to, and all stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units, and all other stock and cash-based long-term incentive awards) to the provisions of this paragraph 6(a), extent that such vesting is based on service with the Company. With respect to any amounts which constitute a deferral performance shares and performance unit awards, (a) the final number of compensation subject to Code Section 409A units and/or SCI:4226014.2 shares payable under such awards shall only be determined in accordance with the terms and provided conditions of the Executive is a “Specified Employee” (as defined under Code Section 409A)respective grant agreement governing such award, such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
and accordingly, (b) Continue to provide distribution of such awards can only take place following such share and/or unit amount determination. Notwithstanding the Executive (and, if applicableforegoing, the Executive’s dependentsfull and immediate vesting of any restricted stock units, performance shares, performance units, shall not change the payment date thereof or otherwise apply to the extent it would result in adverse tax consequences under Section 409A of the Code; and
(4) notwithstanding anything to the contrary in the respective award agreement(s), for a be entitled to exercise any stock options or stock appreciation rights until the expiration of twenty-four (24) month months following Executive's Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right; provided, however, that, if any stock option or stock appreciation right is terminated or cashed-out in connection with a Change in Control, the Executive shall receive a lump-sum cash payment equal to the time value (i.e., under the Black Scholes option pricing model) of such stock options or stock appreciation rights inclusive of the economic value for the period of twenty-four (24) months following Executive's Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right.
(b) If Executive is not a Specified Employee, all payments made to Executive under Section 3(a) immediately above shall be made on the sixtieth (60th) calendar day following Executive's Separation from Service, provided that Executive's Release must be effective and not revocable on the date payment is to be made in order to receive such payments. If Executive is a Specified Employee, to the extent required to comply with Section 409A of the Code, payments made under Section 3(a) immediately above shall be made within ten (10) calendar days following the date following the first (1st) day of Termination, with the same level of benefits described in paragraph 4(dseventh (7th) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to month after the date of Termination (orExecutive's Separation from Service, if more favorable provided that no such payment shall be made to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that Executive if the Executive canRelease has not continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis become effective as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the six (6)-month anniversary of the date of Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder's Separation from Service.
Appears in 1 contract
Severance Payments and Benefits. Subject A. If a Change in Control occurs and within a period of twenty-four (24) months thereafter, Executive incurs a Separation from Service on account of (i) an involuntary termination by the Company for reasons other than death, Disability or Cause, or (ii) a voluntary termination elected by the Executive for Good Reason, then subject to (A) Executive signing and not revoking a separation and general release agreement (the provisions of paragraph 8 “Release”) in a form provided by the Company as may be in use from time to time, and (B) Section 4 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, Executive shall receive (and the Company shall:(or any successor thereto) shall pay, award and/or provide):
(a1) Pay the Executive a lump-sum cash severance payment in cash no later than ten (10) business days after the date of Termination an amount equal to the sum of:
of (ia) The sum of: one times (A1x) Executive’s Annual Compensation; (b) the product of (x) Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below)Long-term Incentive Award Value, multiplied by (2y) a fraction, the numerator of which is the number of days in full and partial calendar months between January 1 of the fiscal year in which of Separation from Service and the date of Termination occurs through and including the date of TerminationExecutive’s Separation from Service (provided, however, that such numerator shall not exceed six (6)) and the denominator of which is three hundred sixty-five twelve (36512); and (Cc) accrued the product of (x) the greater of (A) Executive’s target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive’s Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and unpaid vacation pay through partial calendar months between January 1 of the year of Separation from Service and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to Separation from Service and the date denominator of Terminationwhich is twelve (12); and
(iii2) An amount equal to twelve (12) months of continued coverage under the product Company’s group health plans (based on the level of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding coverage in effect on the provisions date of this paragraph 6(athe Executive’s Separation from Service), at the Company’s expense, subject to the Executive’s timely election of continuation coverage under the COBRA, it being understood that (a) in the event that the Executive becomes eligible to receive substantially similar or improved medical, dental or vision benefits from a subsequent employer (whether or not the Executive accepts such benefits), the Company’s obligations under this Section 3(a)(2) shall immediately cease, (b) the Executive will notify the Company of his eligibility for such benefits from a subsequent employer within thirty (30) days of such eligibility and (c) in the event that the Company’s making payments under this Section 3(a)(2) would violate nondiscrimination rules or result in the imposition of penalties under the PPACA, the parties agree to reform this Section 3(a)(2) in such manner as is necessary to comply with tax laws and the PPACA, as applicable.
(3) full vesting in all Company equity and long-term incentive awards granted to Executive (including, but not limited to, and all stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units, and all other stock and cash-based long-term incentive awards) to the extent that such vesting is based on service with the Company. With respect to any amounts which constitute a deferral performance shares and performance unit awards, (a) the final number of compensation subject to Code Section 409A units and/or shares payable under such awards shall only be determined in accordance with the terms and provided conditions of the Executive is a “Specified Employee” (as defined under Code Section 409A)respective grant agreement governing such award, such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
and accordingly, (b) Continue to provide distribution of such awards can only take place following such share and/or unit amount determination. Notwithstanding the Executive (and, if applicableforegoing, the Executive’s dependentsfull and immediate vesting of any restricted stock units, performance shares, performance units, shall not change the payment date thereof or otherwise apply to the extent it would result in adverse tax consequences under Section 409A of the Code; and
(4) notwithstanding anything to the contrary in the respective award agreement(s), for a entitlement to exercise any stock options or stock appreciation rights until the expiration of twenty-four (24) month months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right; provided, however, that, if any stock option or stock appreciation right is terminated or cashed-out in connection with a Change in Control, the Executive shall receive a lump-sum cash payment equal to the time value (i.e., under the Black Scholes option pricing model) of such stock options or stock appreciation rights inclusive of the economic value for the period of twenty-four (24) months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right.
B. If Executive is not a Specified Employee, all payments made to Executive under Section 3(a) immediately above shall be made on the sixtieth (60th) calendar day following Executive’s Separation from Service, provided that Executive’s Release must be effective and not revocable on the date payment is to be made in order to receive such payments. If Executive is a Specified Employee, to the extent required to comply with Section 409A of the Code, payments made under Section 3(a) immediately above shall be made within ten (10) calendar days following the date following the first (1st) day of Termination, with the same level of benefits described in paragraph 4(dseventh (7th) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to month after the date of Termination (orExecutive’s Separation from Service, if more favorable provided that no such payment shall be made to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that Executive if the Executive canRelease has not continue to participate in become effective as of the Company plans providing such benefits, six (6)-month anniversary of the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount date of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits Separation from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunderService.
Appears in 1 contract
Severance Payments and Benefits. Subject (a) In lieu of any cash severance payments to which the Executive may otherwise be entitled under the Employment Agreement or otherwise or any cash payments on account of the non-renewal of the Term of Employment to which the Executive may otherwise be entitled under the Employment Agreement (and which cash payments the Executive hereby expressly waives), and subject to the provisions regarding cutback of paragraph 8 benefits in certain circumstances as expressly provided in Section 6(h) below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay shall pay or provide to the Executive the following amounts (the “Severance Payments”) upon the occurrence of a lump-sum payment in cash no later than ten Covered Termination during the Protected Period (10except with respect to clause (iv) business days after below, which shall be paid at the date of Termination equal to the sum of:time as specified therein):
(i) The sum of: an amount equal to three (3) times the amount of the Executive’s effective annual base salary rate, as in effect immediately prior to a Change of Control or the Date of Termination (as defined in Section 5(b) below), whichever amount is higher;
(ii) an amount equal to three (3) times the average annual bonus earned by the Executive under the Company’s cash incentive bonus plan in respect of the three fiscal years of the Company ending prior to (A) the date on which a Change of Control occurred or (B) the date on which the Date of Termination occurred, whichever amount is higher;
(iii) an amount equal to the Executive’s annual bonus earned or accrued in respect of any prior fiscal year of the Company but not yet paid as of the Date of Termination; and
(iv) an amount equal to the product of (x) the greater of (A) the Executive’s base salary through and including target bonus opportunity under the date of Termination and any Company’s cash incentive bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus plan for the fiscal year in which the date Date of Termination occurs in an amount equal to: occurs; and (1B) the Executive’s Bonus Amount average bonus the Executive earned for the three (as defined below)3) fiscal years preceding the fiscal year in which the Change in Control occurred, multiplied by (2y) a fraction, the numerator of which is the number of days months and partial months expired in the fiscal year of the Company in which the date Date of Termination occurs occurs, through and including the date Date of Termination, and the denominator of which is three hundred sixty-five twelve (36512); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue In the case of a Covered Termination during the Protected Period, in addition to the payments provided for in Section 4(a) above, the Company shall, during the period ending thirty-six (36) months after the month in which the Date of Termination occurs, arrange at the Company’s sole expense to provide the Executive (andand his dependents with life, if applicablemedical, the Executive’s dependents)dental, for a twenty-four (24) month period following the date of Terminationhealth, with the same and disability insurance benefits at least equal, in type and level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by coverage, to those which the Executive for such benefits) as existed and his dependents were receiving immediately prior to the date Notice of Termination (orwithout, if more favorable however, giving any effect to any reduction in such benefits subsequent to a Change in Control). Benefits otherwise receivable by the Executive pursuant to this Section 4(b) shall be reduced to the extent that comparable benefits equal in type and level of coverage are actually received by the Executive from, or made available to the Executive by, a subsequent employer without greater cost to him than as provided by the Company during such 36-month period (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive).
(c) In the case of a Covered Termination during the Protected Period, (i) any unvested amount credited to the Executive’s bookkeeping account under the Company’s Supplemental Executive Retirement Plan as in effect on the date hereof, and as such benefits and terms and conditions existed immediately the same may be amended prior to the any Change of ControlControl (“SERP”), providedwill become fully vested as of the Date of Termination, that if and in such event such bookkeeping account shall be increased as of the Date of Termination by the aggregate amount of the unvested portion of any account maintained for the Executive cannot continue under any of the Company’s “qualified” retirement plans as of the Executive’s date of termination of employment; and (ii) the Executive’s SERP account shall be distributed to participate the Executive as provided under the terms of the SERP and in accordance with the Company Executive’s distribution election then in effect.
(d) In the case of a Covered Termination during the Protected Period, notwithstanding anything to the contrary contained herein, all outstanding stock options and restricted share, and restricted unit awards, if any, granted to the Executive under any of the Company’s stock incentive plans providing such benefitsor other similar plans shall become fully vested and, to the extent applicable, exercisable.
(e) In the case of a Covered Termination during the Protected Period, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event pay to the Executive becomes reemployed with another employer all other amounts vested, accrued or earned by the Executive through the Date of Termination and becomes eligible to receive welfare benefits from such employer, amounts otherwise owing under the welfare benefits described in this Agreement shall be secondary to such benefits during the period then existing plans and policies of the Executive’s eligibilityCompany, including but only not limited to the extent that the Company reimburses all compensation or other amounts previously deferred by the Executive for (together with any increased cost accrued interest thereon) and provides any additional benefits necessary not yet paid by the Company.
(f) The Company shall pay to give the Executive the benefits provided hereunderamount due pursuant to Section 4(a) in a lump sum cash payment as soon as practicable, but in any event by the fifth (5th) business day following the Date of Termination.
Appears in 1 contract
Samples: Executive Termination Benefits Agreement (Claiborne Liz Inc)
Severance Payments and Benefits. Subject A. If a Change in Control occurs and within a period of twenty-four (24) months thereafter, the Executive incurs a Separation from Service on account of (i) an involuntary termination by the Company for reasons other than death, Disability or Cause, or (ii) a voluntary termination elected by the Executive for Good Reason, then subject to (A) the provisions of paragraph 8 Executive signing and not revoking a separation and general release agreement (the “Release”) in a form provided by the Company as may be in use from time to time, and (B) Section 4 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, Executive shall receive (and the Company shall:(or any successor thereto) shall pay, award and/or provide):
(a1) Pay the Executive a lump-sum cash severance payment in cash no later than ten (10) business days after the date of Termination an amount equal to the sum of:
of (ia) The sum of: one times (A1x) the Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paidAnnual Compensation; (Bb) a pro rata portion the product of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1x) the Executive’s Bonus Amount (as defined below)Long-term Incentive Award Value, multiplied by (2y) a fraction, the numerator of which is the number of days in full and partial calendar months between January 1 of the fiscal year in which of Separation from Service and the date of Termination occurs through and including the date of TerminationExecutive’s Separation from Service (provided, however, that such numerator shall not exceed six (6)) and the denominator of which is three hundred sixty-five twelve (36512); and (Cc) accrued the product of (x) the greater of (A) the Executive’s target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive’s Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and unpaid vacation pay through partial calendar months between January 1 of the year of Separation from Service and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to Separation from Service and the date denominator of Terminationwhich is twelve (12); and
(iii2) An amount equal to twelve (12) months of continued coverage under the product Company’s group health plans (based on the level of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding coverage in effect on the provisions date of this paragraph 6(athe Executive’s Separation from Service), at the Company’s expense, subject to the Executive’s timely election of continuation coverage under the COBRA, it being understood that (a) in the event that the Executive becomes eligible to receive substantially similar or improved medical, dental or vision benefits from a subsequent employer (whether or not the Executive accepts such benefits), the Company’s obligations under this Section 3(a)(2) shall immediately cease, (b) the Executive will notify the Company of her eligibility for such benefits from a subsequent employer within thirty (30) days of such eligibility and (c) in the event that the Company’s making payments under this Section 3(a)(2) would violate nondiscrimination rules or result in the imposition of penalties under the PPACA, the parties agree to reform this Section 3(a)(2) in such manner as is necessary to comply with tax laws and the PPACA, as applicable.
(3) full vesting in all Company equity and long-term incentive awards granted to the Executive (including, but not limited to, all stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units, and all other stock and cash-based long-term incentive awards) to the extent that such vesting is based on service with the Company. With respect to any amounts which constitute a deferral performance shares and performance unit awards, (a) the final number of compensation subject to Code Section 409A units and/or shares payable under such awards shall only be determined in accordance with the terms and provided conditions of the Executive is a “Specified Employee” (as defined under Code Section 409A)respective grant agreement governing such award, such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
and accordingly, (b) Continue to provide distribution of such awards can only take place following such share and/or unit amount determination. Notwithstanding the Executive (and, if applicableforegoing, the Executive’s dependentsfull and immediate vesting of any restricted stock units, performance shares, performance units, shall not change the payment date thereof or otherwise apply to the extent it would result in adverse tax consequences under Section 409A of the Code; and
(4) the right, notwithstanding anything to the contrary in the respective award agreement(s), for a to exercise any stock options or stock appreciation rights until the expiration of twenty-four (24) month months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right; provided, however, that, if any stock option or stock appreciation right is terminated or cashed-out in connection with a Change in Control, the Executive shall receive a lump-sum cash payment equal to the time value (i.e., under the Black Scholes option pricing model) of such stock options or stock appreciation rights inclusive of the economic value for the period of twenty-four (24) months following the Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right.
B. If the Executive is not a Specified Employee, all payments made to the Executive under Section 3(a) immediately above shall be made on the sixtieth (60th) calendar day following the Executive’s Separation from Service, provided that the Executive’s Release must be effective and not revocable on the date payment is to be made in order to receive such payments. If the Executive is a Specified Employee, to the extent required to comply with Section 409A of the Code, payments made under Section 3(a) immediately above shall be made within ten (10) calendar days following the date following the first (1st) day of Termination, with the same level of benefits described in paragraph 4(dseventh (7th) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to month after the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that if the Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibilitySeparation from Service, but only provided that no such payment shall be made to the extent that Executive if the Company reimburses Release has not become effective as of the Executive for any increased cost and provides any additional benefits necessary to give six (6)-month anniversary of the Executive date of the benefits provided hereunderExecutive’s Separation from Service.
Appears in 1 contract
Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay the Executive a lump-sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:
(i) The sum of: (A) the Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below), multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the date of Termination occurs through and including the date of Termination, and the denominator of which is three hundred sixty-five (365); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A of the Code and provided the Executive is a “Specified Employee” (as defined under Code Section 409A409A of the Code), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue to provide the Executive (and, if applicable, the Executive’s dependents), for a twenty-four (24) month period following the date of Termination, with the same level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), after taking into account the benefits provided by CoreLogic, Inc. or any successor thereof, provided, that if the Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits (or the cash-equivalent thereof) on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder.
Appears in 1 contract
Samples: Change in Control Agreement (First American Financial Corp)
Severance Payments and Benefits. Subject (a) In lieu of any other cash severance payments to which the Executive may otherwise be entitled under the Employment Agreement or otherwise (and which other cash severance payments the Executive hereby expressly waives), and subject to the provisions regarding cutback of paragraph 8 benefits in certain circumstances as expressly provided in Section 6(h) below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay shall pay or provide to the Executive the following amounts (the “Severance Payments”) upon the occurrence of a lump-sum payment in cash no later than ten (10) business days after Covered Termination during the date of Termination equal to the sum ofProtected Period:
(i) The sum of: an amount equal to three (3) times the amount of the Executive’s effective annual base salary rate, as in effect immediately prior to a Change of Control or the Date of Termination (as defined in Section 5(b) below), whichever amount is higher;
(ii) an amount equal to three (3) times (A) the average annual bonus earned by the Executive under the Company’s cash incentive bonus plan in respect of the three fiscal years of the Company ending prior to (w) the date on which a Change of Control occurred or (x) the date on which the Date of Termination occurred, whichever amount is higher, or, in the event the Date of Termination and the Change of Control occur prior to the determination by the Compensation Committee of the Company of an annual bonus in respect of fiscal year 2007, (B) the Executive’s Bonus Target Threshold (expressed as a percentage in Section 3(b)(3) of the Employment Agreement) for the fiscal year of the Company in which (y) the date on which a Change of Control occurred or (z) the date on which the Date of Termination occurred, whichever amount is higher;
(iii) an amount equal to the Executive’s annual bonus earned or accrued in respect of any prior fiscal year of the Company but not yet paid as of the Date of Termination; and
(iv) an amount equal to the product of (x) the greater of (A) the Executive’s base salary through and including target bonus opportunity under the date of Termination and any Company’s cash incentive bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus plan for the fiscal year in which the date Date of Termination occurs in an amount equal to: occurs; and (1B) the Executive’s Bonus Amount average bonus the Executive earned for the three (as defined below)3) fiscal years preceding the fiscal year in which the Change in Control occurred, multiplied by (2y) a fraction, the numerator of which is the number of days months and partial months expired in the fiscal year of EXHIBIT E the Company in which the date Date of Termination occurs occurs, through and including the date Date of Termination, and the denominator of which is three hundred sixty-five twelve (36512); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue In the case of a Covered Termination during the Protected Period, in addition to the payments provided for in Section 4(a) above, the Company shall, during the period ending thirty-six (36) months after the month in which the Date of Termination occurs, arrange at the Company’s sole expense to provide the Executive (andand his/her dependents with life, if applicablemedical, the Executive’s dependents)dental, for a twenty-four (24) month period following the date of Terminationhealth, with the same and disability insurance benefits at least equal, in type and level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by coverage, to those which the Executive for such benefits) as existed and his/her dependents were receiving immediately prior to the date Notice of Termination (orwithout, if more favorable however, giving any effect to any reduction in such benefits subsequent to a Change in Control). Benefits otherwise receivable by the Executive pursuant to this Section 4(b) shall be reduced to the Executiveextent that comparable benefits equal in type and level of coverage are actually received by the Executive from, or made available to the Executive by, a subsequent employer without greater cost to him/her than as provided by the Company during such 36-month period (and any such benefits and terms and conditions existed immediately prior received by or made available to the Change of ControlExecutive shall be reported to the Company by the Executive). In addition, provided, in the event that if the Executive cannot and/or his/her dependents are ineligible under the terms of any of the Company’s plans to continue to participate in the Company plans providing such benefitsbe so covered, the Company shall otherwise provide such benefits to the Executive a lump sum payment (determined on a present value basis using the interest rate provided for in Section 1274(b)(2)(B) of the Internal Revenue Code on the same after-tax basis as if continued participation had been permittedDate of Termination) in such amount, and further provided after taxes, that shall be equal to the cost to the Executive of procuring such coverage for such period.
(c) In the case of a Covered Termination during the Protected Period, (i) any unvested amount of expenses eligible for reimbursement during credited to the Executive’s taxable year bookkeeping account under the Company’s Supplemental Executive Retirement Plan as in effect on the date hereof, and as the same may be amended prior to any Change of Control (“SERP”), will become fully vested as of the Date of Termination, and in such event such bookkeeping account shall not affect be increased as of the expenses eligible Date of Termination by the aggregate amount of the unvested portion of any account maintained for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, under any of the welfare benefits described in this Agreement shall be secondary to such benefits during the period Company’s “qualified” retirement plans as of the Executive’s eligibilitydate of termination of employment; and (ii) the Executive’s SERP account shall be distributed to the Executive as provided under the terms of the SERP and in accordance with the Executive’s distribution election then in effect.
(d) In the case of a Covered Termination during the Protected Period, but only notwithstanding anything to the contrary contained herein, all outstanding stock options and restricted share, and restricted unit awards, if any, granted to the Executive under any of the Company’s stock incentive plans or other similar plans shall become fully vested and, to the extent that applicable, exercisable.
(e) In the case of a Covered Termination during the Protected Period, the Company reimburses shall pay to the Executive for all other amounts vested, accrued or earned by the Executive through the Date of Termination and amounts otherwise owing under the then existing EXHIBIT E plans and policies of the Company, including but not limited to all compensation or other amounts previously deferred by the Executive (together with any increased cost accrued interest thereon) and provides any additional benefits necessary not yet paid by the Company.
(f) The Company shall pay to give the Executive the benefits provided hereunderamount due pursuant to Section 4(a) in a lump sum cash payment as soon as practicable, but in any event by the fifth (5th) business day following the Date of Termination.
Appears in 1 contract
Severance Payments and Benefits. Subject (a) In lieu of any other cash severance payments to which the Executive may otherwise be entitled under the Employment Agreement or otherwise (and which other cash severance payments the Executive hereby expressly waives), and subject to the provisions regarding cutback of paragraph 8 benefits in certain circumstances as expressly provided in Section 6(h) below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay shall pay or provide to the Executive the following amounts (the “Severance Payments”) upon the occurrence of a lump-sum payment in cash no later than ten (10) business days after Covered Termination during the date of Termination equal to the sum ofProtected Period:
(i) The sum of: an amount equal to three (3) times the amount of the Executive’s effective annual base salary rate, as in effect immediately prior to a Change of Control or the Date of Termination (as defined in Section 5(b) below), whichever amount is higher;
(ii) an amount equal to three (3) times (A) the average annual bonus earned by the Executive under the Company’s cash incentive bonus plan in respect of the three fiscal years of the Company ending prior to (w) the date on which a Change of Control occurred or (x) the date on which the Date of Termination occurred, whichever amount is higher, or, in the event the Date of Termination and the Change of Control occur prior to the determination by the Compensation Committee of the Company of an annual bonus in respect of fiscal year 2007, (B) the Executive’s Bonus Target Threshold (expressed as a percentage in Section 3(b)(3) of the Employment Agreement) for the fiscal year of the Company in which (y) the date on which a Change of Control occurred or (z) the date on which the Date of Termination occurred, whichever amount is higher;
(iii) an amount equal to the Executive’s annual bonus earned or accrued in respect of any prior fiscal year of the Company but not yet paid as of the Date of Termination; and
(iv) an amount equal to the product of (x) the greater of (A) the Executive’s base salary through and including target bonus opportunity under the date of Termination and any Company’s cash incentive bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus plan for the fiscal year in which the date Date of Termination occurs in an amount equal to: occurs; and (1B) the Executive’s Bonus Amount average bonus the Executive earned for the three (as defined below)3) fiscal years preceding the fiscal year in which the Change in Control occurred, multiplied by (2y) a fraction, the numerator of which is the number of days months and partial months expired in the fiscal year of the Company in which the date Date of Termination occurs occurs, through and including the date Date of Termination, and the denominator of which is three hundred sixty-five twelve (36512); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue In the case of a Covered Termination during the Protected Period, in addition to the payments provided for in Section 4(a) above, the Company shall, during the period ending thirty-six (36) months after the month in which the Date of Termination occurs, arrange at the Company’s sole expense to provide the Executive (andand his/her dependents with life, if applicablemedical, the Executive’s dependents)dental, for a twenty-four (24) month period following the date of Terminationhealth, with the same and disability insurance benefits at least equal, in type and level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by coverage, to those which the Executive for such benefits) as existed and his/her dependents were receiving immediately prior to the date Notice of Termination (orwithout, if more favorable however, giving any effect to any reduction in such benefits subsequent to a Change in Control). Benefits otherwise receivable by the Executive pursuant to this Section 4(b) shall be reduced to the Executiveextent that comparable benefits equal in type and level of coverage are actually received by the Executive from, or made available to the Executive by, a subsequent employer without greater cost to him/her than as provided by the Company during such 36-month period (and any such benefits and terms and conditions existed immediately prior received by or made available to the Change of ControlExecutive shall be reported to the Company by the Executive). In addition, provided, in the event that if the Executive cannot and/or his/her dependents are ineligible under the terms of any of the Company’s plans to continue to participate in the Company plans providing such benefitsbe so covered, the Company shall otherwise provide such benefits to the Executive a lump sum payment (determined on a present value basis using the interest rate provided for in Section 1274(b)(2)(B) of the Internal Revenue Code on the same after-tax basis as if continued participation had been permittedDate of Termination) in such amount, and further provided after taxes, that shall be equal to the cost to the Executive of procuring such coverage for such period.
(c) In the case of a Covered Termination during the Protected Period, (i) any unvested amount of expenses eligible for reimbursement during credited to the Executive’s taxable year bookkeeping account under the Company’s Supplemental Executive Retirement Plan as in effect on the date hereof, and as the same may be amended prior to any Change of Control (“SERP”), will become fully vested as of the Date of Termination, and in such event such bookkeeping account shall not affect be increased as of the expenses eligible Date of Termination by the aggregate amount of the unvested portion of any account maintained for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, under any of the welfare benefits described in this Agreement shall be secondary to such benefits during the period Company’s “qualified” retirement plans as of the Executive’s eligibilitydate of termination of employment; and (ii) the Executive’s SERP account shall be distributed to the Executive as provided under the terms of the SERP and in accordance with the Executive’s distribution election then in effect.
(d) In the case of a Covered Termination during the Protected Period, but only notwithstanding anything to the contrary contained herein, all outstanding stock options and restricted share, and restricted unit awards, if any, granted to the Executive under any of the Company’s stock incentive plans or other similar plans shall become fully vested and, to the extent that applicable, exercisable.
(e) In the case of a Covered Termination during the Protected Period, the Company reimburses shall pay to the Executive for all other amounts vested, accrued or earned by the Executive through the Date of Termination and amounts otherwise owing under the then existing plans and policies of the Company, including but not limited to all compensation or other amounts previously deferred by the Executive (together with any increased cost accrued interest thereon) and provides any additional benefits necessary not yet paid by the Company.
(f) The Company shall pay to give the Executive the benefits provided hereunderamount due pursuant to Section 4(a) in a lump sum cash payment as soon as practicable, but in any event by the fifth (5th) business day following the Date of Termination.
Appears in 1 contract
Samples: Executive Termination Benefits Agreement (Claiborne Liz Inc)
Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay the Executive a lump-sum payment in cash no later than ten (10) business days after the date of Termination equal to the sum of:
(i) The sum of: (A) the Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below), multiplied by (2) a fraction, the numerator of which is the number of days in the fiscal year in which the date of Termination occurs through and including the date of Termination, and the denominator of which is three hundred sixty-five (365); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue to provide the Executive (and, if applicable, the Executive’s dependents), for a twenty-four (24) month period following the date of Termination, with the same level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to the date of Termination (or, if more favorable to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, provided that if the Executive cannot continue to participate in the Company plans providing such benefits, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunder.
Appears in 1 contract
Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay If a Change in Control occurs and, in contemplation of that Change in Control or within a period of twenty-four (24) months following the closing of a transaction that constitutes a Change in Control, Executive incurs a Separation from Service on account of (i) an involuntary termination by the Company for reasons other than death, Disability or Cause, or (ii) a voluntary termination elected by the Executive for Good Reason, then -- subject to (A) Executive signing and not revoking a Separation Agreement and General Release of All Claims in the form attached hereto as Exhibit A, and (B) Section 4 below -- Executive shall (and the Company (or any successor thereto) shall pay, award and/or provide):
(1) receive a lump-sum cash severance payment in cash no later than ten (10) business days after the date of Termination an amount equal to the sum of:
of (ia) The sum of: two times (A2x) Executive’s Annual Compensation; (b) the product of (x) Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below)Long-term Incentive Award Value, multiplied by (2y) a fraction, the numerator of which is the number of days in full and partial calendar months between January 1 of the fiscal year in which of Separation from Service and the date of Termination occurs through and including the date of TerminationExecutive’s Separation from Service (provided, however, that such numerator shall not exceed six (6)) and the denominator of which is three hundred sixty-five twelve (36512); (Cc) accrued the Benefits Cash-out Amount; and unpaid vacation pay through (d) the product of (x) the greater of (A) Executive’s target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive’s Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and including partial calendar months between January 1 of the year of Separation from Service and the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to Separation from Service and the date denominator of Terminationwhich is twelve (12); and
(iii2) An amount equal become fully vested in all Company equity and long-term incentive awards granted to Executive (including, but not limited to, any and all stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units, and all other stock and cash-based long-term incentive awards) to the product of extent that such vesting is based on service with the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with Company. With respect to any amounts which constitute a deferral performance shares and performance unit awards, (a) the final number of compensation subject to Code Section 409A units and/or shares payable under such awards shall only be determined in accordance with the terms and provided conditions of the Executive is a “Specified Employee” (as defined under Code Section 409A)respective grant agreement governing such award, such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
and accordingly, (b) Continue to provide distribution of such awards can only take place following such share and/or unit amount determination. Notwithstanding the Executive (and, if applicableforegoing, the Executive’s dependentsfull and immediate vesting of any restricted stock units, performance shares, performance units, shall not change the payment date thereof or otherwise apply to the extent it would result in adverse tax consequences under Section 409A of the Code.; and
(3) notwithstanding anything to the contrary in the respective award agreement(s), for a be entitled to exercise any stock options or stock appreciation rights until the expiration of twenty-four (24) month months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right; provided, however, that, if any stock option or stock appreciation right is terminated or cashed-out in connection with a Change in Control, the Executive shall receive a lump-sum cash payment equal to the time value (i.e., under the Black Scholes option pricing model) of such stock options or stock appreciation rights inclusive of the economic value for the period of twenty-four (24) months following Executive’s Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right.
(b) If Executive is not a Specified Employee, all payments made to Executive under Section 3(a) immediately above shall be made on the sixtieth (60th) calendar day following Executive’s Separation from Service, provided that Executive’s release of claims in the form attached hereto as Exhibit A must be effective and not revocable on the date payment is to be made in order to receive such payments. If Executive is a Specified Employee, to the extent required to comply with Section 409A of the Code, payments made under Section 3(a) immediately above shall be made within ten (10) calendar days following the date following the first (1st) day of Termination, with the same level of benefits described in paragraph 4(dseventh (7th) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to month after the date of Termination Executive’s Separation from Service, provided that no such payment shall be made to Executive if the release of claims in the form attached hereto as Exhibit A has not become effective as of the six (or6)-month anniversary of the date of Executive’s Separation from Service. If all or any portion of any amounts payable to Executive pursuant to Section 3(a) immediately above is deferred to comply with Code Section 409A, if more favorable to such payments shall accrue interest at the six (6)-month Libor rate, and, on or before the date of the Executive’s Separation from Service, as such benefits and terms and conditions existed immediately the Company shall make an irrevocable contribution of the amount deferred to comply with Section 409A of the Code to a grantor trust established by the Company prior to the Change in Control consistent with the terms of Control)Rev. Proc. 92-64, provided1992-33 I.R.B. 11, that if with irrevocable instructions to pay such amounts to Executive within ten (10) calendar days following the Executive cannot continue to participate in date following the Company plans providing such benefits, first (1st) day of the seventh (7th) month after the date of Executive’s Separation from Service. Such grantor trust shall have an independent trustee and the Company shall otherwise provide bear all costs, expenses and fees, including legal and trustee fees, of establishing and maintaining such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereundertrust.
Appears in 1 contract
Severance Payments and Benefits. Subject to the provisions of paragraph 8 below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay If a Change in Control occurs and within a period of twenty-four (24) months thereafter, Executive incurs a Separation from Service on account of (i) an involuntary termination by the Company for reasons other than death, Disability or Cause, or (ii) a voluntary termination elected by the Executive for Good Reason, then subject to (A) Executive signing and not revoking a separation and general release agreement (the "Release") in a form provided by the Company as may be in use from time to time, and (B) Section 4 below, Executive shall (and the Company (or any successor thereto) shall pay, award and/or provide):
(1) receive a lump-sum cash severance payment in cash no later than ten (10) business days after the date of Termination an amount equal to the sum of:
of(a) one times (ilx) The sum of: Executive’s Annual Compensation; (Ab) the product of (x) Executive’s base salary through and including the date of Termination and any bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus for the fiscal year in which the date of Termination occurs in an amount equal to: (1) the Executive’s Bonus Amount (as defined below)Long-term Incentive Award Value, multiplied by (2y) a fraction, the numerator of which is the number of days in full and partial calendar months between January 1 of the fiscal year in which of Separation from Service and the date of Termination occurs through and including the date of TerminationExecutive's Separation from Service (provided, however, that such numerator shall not exceed six (6)) and the denominator of which is three hundred sixty-five twelve (36512); and (Cc) accrued the product of(x) the greater of (A) Executive's target annual bonus amount for the year in which the Separation from Service occurs, or (B) the highest annual bonus paid to the Executive out of the three (3) prior bonuses paid to the Executive prior to the Executive's Separation from Service, multiplied by (y) a fraction, the numerator of which is the number of full and unpaid vacation pay through partial calendar months between January 1 of the year of Separation from Service and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) Executive's Separation from Service and the Executive’s annual salary in effect immediately prior to the date denominator of Terminationwhich is twelve (12); and
(iii2) An amount equal receive twelve (12) months of continued coverage under the Company's group health plans (based on the level of the Executive's coverage in effect on the date of the Executive's Separation from Service), at the Company's expense, subject to the product Executive's timely election of continuation coverage under the Applicable Multiple COBRA, it being understood that (a) in the event that the Executive becomes eligible to receive substantially similar or improved medical, dental or vision benefits from a subsequent employer (whether or not the Executive accepts such benefits), the Company's obligations under this Section 3(a)(2) shall immediately cease, (b) the Executive will notify the Company of her eligibility for such benefits from a subsequent employer within thirty (30) days of such eligibility and (c) in the event that the Company's making payments under this Section 3(a)(2) would violate nondiscrimination rules or result in the imposition of penalties under the PPACA, the parties agree to reform this Section 3(a)(2) in such manner as is necessary to comply with tax laws and the Executive’s Bonus Amount; Notwithstanding PPACA, as applicable.
(3) become fully vested in all Company equity and long-term incentive awards granted to Executive (including, but not limited to, and all stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units, and all other stock and cash-based long-term incentive awards) to the provisions of this paragraph 6(a), extent that such vesting is based on service with the Company. With respect to any amounts which constitute a deferral performance shares and performance unit awards, (a) the final number of compensation subject to Code Section 409A units and/or shares payable under such awards shall only be determined in accordance with the terms and provided conditions of the Executive is a “Specified Employee” (as defined under Code Section 409A)respective grant agreement governing such award, such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
and accordingly, (b) Continue to provide distribution of such awards can only take place following such share and/or unit amount determination. Notwithstanding the Executive (and, if applicableforegoing, the Executive’s dependentsfull and immediate vesting of any restricted stock units, performance shares, performance units, shall not change the payment date thereof or otherwise apply to the extent it would result in adverse tax consequences under Section 409A of the Code; and
(4) notwithstanding anything to the contrary in the respective award agreement(s), for a be entitled to exercise any stock options or stock appreciation rights until the expiration of twenty-four (24) month months following Executive's Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right; provided, however, that, if any stock option or stock appreciation right is terminated or cashed-out in connection with a Change in Control, the Executive shall receive a lump sum cash payment equal to the time value (i.e., under the Black Scholes option pricing model) of such stock options or stock appreciation rights inclusive of the economic value for the period of twenty-four (24) months following Executive's Separation from Service (or until such later date as may be applicable under the terms of the award agreement governing the stock option or stock appreciation right upon termination of employment), subject to the maximum full term of the stock option or stock appreciation right.
(b) If Executive is not a Specified Employee, all payments made to Executive under Section 3(a) immediately above shall be made on the sixtieth (60th) calendar day following Executive's Separation from Service, provided that Executive's Release must be effective and not revocable on the date payment is to be made in order to receive such payments. If Executive is a Specified Employee, to the extent required to comply with Section 409A of the Code, payments made under Section 3(a) immediately above shall be made within ten (I0) calendar days following the date following the first (Ist) day of Termination, with the same level of benefits described in paragraph 4(dseventh (7th) of this Agreement upon substantially the same terms and conditions (including contributions required by the Executive for such benefits) as existed immediately prior to month after the date of Termination (orExecutive's Separation from Service, if more favorable provided that no such payment shall be made to the Executive, as such benefits and terms and conditions existed immediately prior to the Change of Control), provided, that Executive if the Executive canRelease has not continue to participate in become effective as of the Company plans providing such benefits, six (6)-month anniversary of the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount date of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event the Executive becomes reemployed with another employer and becomes eligible to receive welfare benefits Separation from such employer, the welfare benefits described in this Agreement shall be secondary to such benefits during the period of the Executive’s eligibility, but only to the extent that the Company reimburses the Executive for any increased cost and provides any additional benefits necessary to give the Executive the benefits provided hereunderService.
Appears in 1 contract
Samples: Change in Control Agreement (Alphatec Holdings, Inc.)
Severance Payments and Benefits. Subject (a) In lieu of any cash severance payments to which the Executive may otherwise be entitled under the Severance Benefit Agreement or otherwise (and which cash payments the Executive hereby expressly waives), and subject to the provisions regarding cutback of paragraph 8 benefits in certain circumstances as expressly provided in Section 6(h) below, in the event of a Termination, in lieu of the amount otherwise payable under paragraph 4 above, the Company shall:
(a) Pay shall pay or provide to the Executive the following amounts (the “Severance Payments”) upon the occurrence of a lump-sum payment in cash no later than ten Covered Termination during the Protected Period (10except with respect to clause (iv) business days after below, which shall be paid at the date of Termination equal to the sum of:time as specified therein):
(i) The sum of: an amount equal to three (3) times the amount of the Executive’s effective annual base salary rate, as in effect immediately prior to a Change of Control or the Date of Termination (as defined in Section 5(b) below), whichever amount is higher;
(ii) an amount equal to three (3) times the average annual bonus earned by the Executive under the Company’s cash incentive bonus plan in respect of the three fiscal years of the Company ending prior to (A) the date on which a Change of Control occurred or (B) the date on which the Date of Termination occurred, whichever amount is higher;
(iii) an amount equal to the Executive’s annual bonus earned or accrued in respect of any prior fiscal year of the Company but not yet paid as of the Date of Termination; and
(iv) an amount equal to the product of (x) the greater of (A) the Executive’s base salary through and including target bonus opportunity under the date of Termination and any Company’s cash incentive bonus amounts which have become payable, to the extent either has not theretofore been paid; (B) a pro rata portion of the Executive’s annual bonus plan for the fiscal year in which the date Date of Termination occurs in an amount equal to: occurs; and (1B) the Executive’s Bonus Amount average bonus the Executive earned for the three (as defined below)3) fiscal years preceding the fiscal year in which the Change in Control occurred, multiplied by (2y) a fraction, the numerator of which is the number of days months and partial months expired in the fiscal year of the Company in which the date Date of Termination occurs occurs, through and including the date Date of Termination, and the denominator of which is three hundred sixty-five twelve (36512); (C) accrued and unpaid vacation pay through and including the date of Termination; and (D) unreimbursed business expenses through and including the date of Termination;
(ii) An amount equal to the product of the Applicable Multiple (as defined below) and the Executive’s annual salary in effect immediately prior to the date of Termination; and
(iii) An amount equal to the product of the Applicable Multiple and the Executive’s Bonus Amount; Notwithstanding the provisions of this paragraph 6(a), with respect to any amounts which constitute a deferral of compensation subject to Code Section 409A and provided the Executive is a “Specified Employee” (as defined under Code Section 409A), such amounts shall be paid to the Executive on the date which is six (6) months after his or her date of Separation from Service.
(b) Continue In the case of a Covered Termination during the Protected Period, in addition to the payments provided for in Section 4(a) above, the Company shall, during the period ending thirty-six (36) months after the month in which the Date of Termination occurs, arrange at the Company’s sole expense to provide the Executive (andand his dependents with life, if applicablemedical, the Executive’s dependents)dental, for a twenty-four (24) month period following the date of Terminationhealth, with the same and disability insurance benefits at least equal, in type and level of benefits described in paragraph 4(d) of this Agreement upon substantially the same terms and conditions (including contributions required by coverage, to those which the Executive for such benefits) as existed and his dependents were receiving immediately prior to the date Notice of Termination (orwithout, if more favorable however, giving any effect to any reduction in such benefits subsequent to a Change in Control). Benefits otherwise receivable by the Executive pursuant to this Section 4(b) shall be reduced to the extent that comparable benefits equal in type and level of coverage are actually received by the Executive from, or made available to the Executive by, a subsequent employer without greater cost to him than as provided by the Company during such 36-month period (and any such benefits received by or made available to the Executive shall be reported to the Company by the Executive).
(c) In the case of a Covered Termination during the Protected Period, (i) any unvested amount credited to the Executive’s bookkeeping account under the Company’s Supplemental Executive Retirement Plan as in effect on the date hereof, and as such benefits and terms and conditions existed immediately the same may be amended prior to the any Change of ControlControl (“SERP”), providedwill become fully vested as of the Date of Termination, that if and in such event such bookkeeping account shall be increased as of the Date of Termination by the aggregate amount of the unvested portion of any account maintained for the Executive cannot continue under any of the Company’s “qualified” retirement plans as of the Executive’s date of termination of employment; and (ii) the Executive’s SERP account shall be distributed to participate the Executive as provided under the terms of the SERP and in accordance with the Company Executive’s distribution election then in effect.
(d) In the case of a Covered Termination during the Protected Period, notwithstanding anything to the contrary contained herein, all outstanding stock options and restricted share, and restricted unit awards, if any, granted to the Executive under any of the Company’s stock incentive plans providing such benefitsor other similar plans shall become fully vested and, to the extent applicable, exercisable.
(e) In the case of a Covered Termination during the Protected Period, the Company shall otherwise provide such benefits on the same after-tax basis as if continued participation had been permitted, and further provided the amount of expenses eligible for reimbursement during the Executive’s taxable year shall not affect the expenses eligible for reimbursement in any other taxable year. Notwithstanding the foregoing provisions of this paragraph, in the event pay to the Executive becomes reemployed with another employer all other amounts vested, accrued or earned by the Executive through the Date of Termination and becomes eligible to receive welfare benefits from such employer, amounts otherwise owing under the welfare benefits described in this Agreement shall be secondary to such benefits during the period then existing plans and policies of the Executive’s eligibilityCompany, including but only not limited to the extent that the Company reimburses all compensation or other amounts previously deferred by the Executive for (together with any increased cost accrued interest thereon) and provides any additional benefits necessary not yet paid by the Company.
(f) The Company shall pay to give the Executive the benefits provided hereunderamount due pursuant to Section 4(a) in a lump sum cash payment as soon as practicable, but in any event by the fifth (5th) business day following the Date of Termination.
Appears in 1 contract
Samples: Executive Termination Benefits Agreement (Claiborne Liz Inc)
