Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof: (a) In the event of termination of the Executive’s employment pursuant to Section 4 of this Agreement: (i) the Company shall pay the Executive within 30 days following the date of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid through the date of termination and any vacation time accrued but not used to that date, and any business expenses incurred by the Executive but un-reimbursed on the date of termination, provided that such expenses and required substantiation and documentation are submitted within sixty (60) days following the date of termination and that such expenses are reimbursed as set forth in Section 12(e) of this Agreement; and (ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law. (b) In the event of termination of the Executive’s employment by the Company pursuant to Section 4(b) of this Agreement, or in the event of termination of the Executive’s employment by the Executive pursuant to Section 4(c) of this Agreement, then in addition to the benefits described in Section 5(a) of this Agreement: (i) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then current base salary on an annualized basis as of the date of termination (the “Severance Payment”); provided, that in the event the Executive commences any employment substantially similar to Executive’s employment hereunder (based upon responsibility, reporting and compensation) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments in accordance with the Company’s standard payroll practices over a period of twelve (12) months beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month period, the “Severance Period”). (ii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (ii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and (iii) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and (iv) 50% of the Executive’s then remaining unvested restricted stock which were issued to the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based on the passage of time, shall automatically vest as of the Payment Date. (c) If a Change of Control (as defined in Section 6 hereof) occurs, and within twelve (12) months following such Change of Control, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof: (i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement); (ii) the Company shall pay the Executive one hundred percent (100%) of the Executive’s then current base salary on an annualized basis as of the date of termination, and such payment shall be made to the Executive in a lump sum on the Payment Date; (iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and (iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer. (d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements. (e) Notwithstanding anything to the contrary contained herein, the obligation of the Company to make payments to the Executive or on the Executive’s behalf under this Section 5 is expressly conditioned upon the Executive’s continued full performance of the Executive’s obligations under this Agreement, including Section 3 hereof, under the Ancillary Agreements and under any other agreement between the Executive and the Company or any of its Affiliates. (f) Notwithstanding anything to the contrary contained herein, the obligations of the Company pursuant to Sections 5(b) through 5(e) are subject to the Executive’s execution and non-revocation of a severance agreement and release (the “Release”), drafted by and satisfactory to counsel for the Company, within 45 days following the date of termination. The severance and benefits described in Sections 5(b) and 5(c) shall be paid or commence within 15 days following the execution and non-revocation of such Release (the “Payment Date”). Notwithstanding the foregoing, if the 45th day following the date of termination occurs in the calendar year following the date of termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar year. The payment of any severance amounts pursuant to this Agreement shall be subject to the terms and conditions set forth in Section 12.
Appears in 2 contracts
Samples: Employment Agreement (Catabasis Pharmaceuticals Inc), Employment Agreement (Catabasis Pharmaceuticals Inc)
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of your employment with the ExecutiveCompany, howsoever occurring, in addition to any amounts previously earned by you under any of the Company’s employment pursuant retirement plans or expressly required to Section 4 of this Agreement:
(i) be paid by the Company under applicable law, the Company shall pay you (i) your Base Salary (at the Executive within 30 days following rate then in effect) for the date final payroll period of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid your employment, through the date of termination your employment terminates at the time prescribed by applicable law for such payment; and any vacation time accrued but not used to that date, and any (ii) reimbursement for business expenses incurred by the Executive you but un-reimbursed on not yet paid to you as of the date of termination, your employment terminates; provided that such you submit all expenses and supporting documentation required substantiation and documentation are submitted within sixty (60) days following of the date of termination your employment terminates, and provided further that such expenses are reimbursed reimburseable under Company policies as set forth then in Section 12(e) effect (all of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law“Final Compensation”).
(b) In the event of your Separation from Service in connection with any termination of the Executive’s your employment by the Company pursuant to Section 4(b) or Section 4(d) hereof, the Company, in addition to Final Compensation, will pay you a sum (the “Severance Pay”) equal to (x) twelve (12) months of this Agreement, or your Base Salary (at the rate then in the event of effect prior to taking in to account any reduction that triggers a termination of the Executive’s your employment by the Executive pursuant to Section 4(c4(d) hereof), payable in accordance with the Company’s prevailing payroll practices for a period of this Agreement, then in addition to the benefits described in Section 5(atwelve (12) of this Agreement:
(i) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then current base salary on an annualized basis as of months from the date of termination (the “Severance PaymentPeriod”). Any obligation of the Company to you hereunder, other than for Final Compensation, is conditioned, however, on your signing and returning to the Company a timely and effective release of claims in the form provided to you by the Company not later than five (5) business days following the date your employment is terminated (the “Employee Release”). You must sign and return (and not revoke) the Employee Release, if at all, by the deadline specified therein, which deadline shall in no event be later than the sixtieth (60th) calendar day following the date your employment is terminated. The first payment in respect of your Severance Pay will be made on the Company’s next regular payroll date following the later of the effective date of the Employee Release or the date it is received by the Company; but that first payment shall be retroactive to the date of termination; provided, that if your Separation from Service occurs in one taxable year and the revocation period expires in the event the Executive commences any employment substantially similar to Executive’s employment hereunder (based upon responsibility, reporting and compensation) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments in accordance with the Company’s standard payroll practices over a period of twelve (12) months beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month periodsecond taxable year, the “payments in respect of your Severance Period”).
(ii) Executive Pay shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (ii) by a fraction, the numerator of which is the number of days commence in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iii) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and
(iv) 50% of the Executive’s then remaining unvested restricted stock which were issued to the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based on the passage of time, shall automatically vest as of the Payment Date.
(c) If a Change of Control (as defined in Section 6 hereof) occurs, and within twelve (12) months following such Change of Control, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall pay the Executive one hundred percent (100%) of the Executive’s then current base salary on an annualized basis as of the date of termination, and such payment shall be made to the Executive in a lump sum on the Payment Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer.
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) second taxable year. Notwithstanding anything to the contrary contained hereinin this Agreement, however, in the obligation event that at the time of the Company to make payments to the Executive or on the Executive’s behalf your Separation from Service you are a “Specified Employee,” any and all amounts payable under this Section 5 is expressly conditioned upon the Executive’s continued full performance in connection with such separation from service that constitute deferred compensation subject to Section 409A of the Executive’s obligations under this AgreementInternal Revenue Code of 1986, including as amended (“Section 3 hereof, under the Ancillary Agreements and under any other agreement between the Executive and the Company or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations of the Company pursuant to Sections 5(b) through 5(e) are subject to the Executive’s execution and non-revocation of a severance agreement and release (the “Release409A”), drafted as determined by the Company in its sole discretion, and satisfactory to counsel that would (but for this sentence) be payable within six (6) months following such separation from service, shall instead be paid on the Company, within 45 days following date that follows the date of terminationsuch separation from service by six (6) months. The severance and benefits described in Sections For purposes of this Section 5(b) and 5(c) ), “Separation from Service” shall be paid or commence within 15 days following determined in a manner consistent with subsection (a)(2)(A)(i) of Section 409A, and the execution and non-revocation term “Specified Employee” shall mean an individual determined by the Company to be a specified employee as defined in subsection (a)(2)(B)(i) of such Release (the “Payment Date”). Notwithstanding the foregoing, if the 45th day following the date of termination occurs in the calendar year following the date of termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar year. The payment of any severance amounts pursuant to this Agreement shall be subject to the terms and conditions set forth in Section 12.409A.
Appears in 1 contract
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of the Executive’s employment pursuant to Section 4 of this Agreement:
(i) the Company shall pay the Executive within 30 days following the date of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid through the date of termination and any vacation time accrued but not used to that date, and any business expenses incurred by the Executive but un-reimbursed on the date of termination, provided that such expenses and required substantiation and documentation are submitted within sixty (60) days following the date of termination and that such expenses are reimbursed as set forth in Section 12(e) of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law.
(b) In the event of termination of the Executive’s employment by the Company Termination pursuant to Section 4(b) of this Agreementor 4(c).
(i) Except as provided in Section 5(c) below, or in the event of termination of the Executive’s employment either by the Company other than for Cause pursuant to Section 4(a) of this Agreement or by the Executive for Good Reason pursuant to Section 4(c) of this Agreement, then in addition (a) all unvested options, restricted stock, and restricted stock units granted prior to the benefits described in date this Agreement is fully executed which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) that are outstanding immediately prior to the date of termination and, but for the termination of the Executive’s employment, would have vested during the twelve (12) month period immediately following the date of termination, shall, notwithstanding the terms of the stock or equity compensation plans and any applicable award agreements, remain outstanding and eligible to vest until the Payment Commencement Date and, subject to Section 5(a5(a)(iii), automatically become fully vested as of the Payment Commencement Date with respect to such portion of each such award that would have vested during such twelve (12) of this Agreement:
month period and (ib) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then then-current annual base salary on an annualized basis as of the date of termination (the “Severance Payment”); provided, that in the event the Executive commences any employment substantially similar to Executive’s employment hereunder (based upon responsibility, reporting and compensation) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments in accordance with the Company’s standard payroll practices over for a period of twelve (12) months in accordance with the Company’s payroll practice then in effect, beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month period, the “Severance Period”)Commencement Date.
(ii) Executive shall receive a bonus paymentExcept as provided in Section 5(c) below, in lieu the event of a bonus for the calendar year in which such termination of the Executive’s employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive either by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year other than for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained Cause pursuant to Section 4(a) of this clause (ii) Agreement or by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iiifor Good Reason pursuant to Section 4(c) of this Agreement, if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates terminates, and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall will pay or, at its option, reimburse the Executive, for the full premium cost of that participation until the earlier of (A) for twelve (12) months following the Payment Date and (B) date on which the Executive’s employment with the Company terminates or, if earlier, until the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and
(iv) 50% of the Executive’s then remaining unvested restricted stock which were issued to the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based on the passage of time, shall automatically vest as of the Payment Date.
(c) If a Change of Control (as defined payable in Section 6 hereof) occurs, and within twelve (12) months following such Change of Control, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the accordance with regular payroll practices for benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall pay the Executive one hundred percent (100%) of the Executive’s then current base salary on an annualized basis as of the date of termination, and such payment shall be made to the Executive in a lump sum beginning on the Payment Commencement Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for . In the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal event that the Company elects to fifty percent (50%) of the average annual bonus paid to reimburse the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (orparticipation, it shall gross up such payment’s tax consequences, if applicableany, dental) plan of a new employer.
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) Notwithstanding anything to the contrary contained herein, the obligation of the Company to make payments to the Executive or on the Executive’s behalf under this Section 5 is expressly conditioned upon the Executive’s continued full performance of the Executive’s obligations under this Agreement, including Section 3 hereof, under the Ancillary Agreements and under any other agreement between the Executive and the Company or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations of the Company pursuant to Sections 5(b) through 5(e) are subject to the Executive’s execution and non-revocation of a severance agreement and release (the “Release”), drafted by and satisfactory to counsel for the Company, within 45 days following the date of termination. The severance and benefits described in Sections 5(b) and 5(c) shall be paid or commence within 15 days following the execution and non-revocation of such Release (the “Payment Date”). Notwithstanding the foregoing, if the 45th payment or reimbursement by the Company of the premium costs, including payment of any gross up for any tax consequences, described in the preceding sentence will subject or expose the Company to taxes or penalties, the Executive and the Company agree to make good faith efforts to renegotiate the provisions of this Section 5(a)(ii) and to enter into a substitute arrangement pursuant to which the Company may not be subjected or exposed to taxes or penalties but which will not adversely affect the full economic value to the Executive of the benefits promised by this provision. For avoidance of any doubt, nothing in this provision will require the Executive to accept any renegotiated agreement that would disadvantage him economically or require that he accept a lesser quality of health care coverage for himself and his family. The Company will also pay the Executive on the date of termination any base salary earned but not paid through the date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Executive any bonus which has been awarded to the Executive, but not yet paid on the date of termination of his employment, payable in a lump sum at such time when bonuses are paid to executives of the Company generally in accordance with the timing rules of Section 2(a).
(iii) Any obligation of the Company to provide the Executive severance payments or other benefits under this Section 5(a) or Section 5(c) is conditioned on the Executive’s signing an effective and reasonable release of claims (the “Employee Separation Release”) and the termination of any period in which the Executive may revoke such Employee Release (without the Executive revoking) within 60 days following the termination of the Executive’s employment (“Release Effective Date”). Such Employee Separation Release shall not (A) apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by ERISA, nor shall such Employee Separation Release (B) prevent the Executive from defending himself against a released party in the event that any such released party initiates legal action against him pertaining to events or circumstances arising prior to the effective date of the Employee Release other than a legal action that solely alleges claims involving or arising out of a violation of law that would constitute a felony or other crime involving moral turpitude by the Executive that amounts to criminal misconduct on the Executive’s part. In such a circumstance described in (B), the Employee Separation Release shall be null and void as against that party alone, and the Executive may bring any counter-claim he may have against the party that initiated the litigation.
(iv) The severance payments shall commence on the first payroll period following the Release Effective Date, but the amount of the first installment shall reflect the period retroactive to the date of termination (the “Payment Commencement Date”), and each subsequent installment payment shall be a series of separate, substantially equal payments.
(v) Notwithstanding the foregoing, if the 60th day following the date of termination occurs in the calendar year following the date calendar year of the termination, then the Payment Commencement Date shall be no earlier than January 1 of such subsequent calendar year. The payment Executive agrees to provide the Company prompt notice of the Executive’s eligibility to participate in the health plan and, if applicable, dental plan of any severance amounts employer.
(b) Termination other than pursuant to Section 4(b) or 4(c). In the event of any termination of the Executive’s employment, other than a termination by the Company pursuant to Section 4(b) of this Agreement shall be subject or a termination by the Executive for Good Reason pursuant to Section 4(c) of this Agreement, the Company will pay the Executive any base salary earned but not paid through the date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Executive any bonus which has been awarded to the terms and conditions set forth Executive, but not yet paid, at such time when bonuses are paid to executives of the Company generally in accordance with the timing rules of Section 122(a). The Company shall have no other obligation to the Executive under this Agreement.
Appears in 1 contract
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of the Executive’s employment pursuant to Section 4 of this Agreement:
(i) the Company shall pay the Executive within 30 days following the date of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid through the date of termination and any vacation time accrued but not used to that date, and any business expenses incurred by the Executive but un-reimbursed on the date of termination, provided that such expenses and required substantiation and documentation are submitted within sixty (60) days following the date of termination and that such expenses are reimbursed as set forth in Section 12(e) of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law.
(b) In the event of termination of the Executive’s employment by the Company Termination pursuant to Section 4(b) of this Agreementor 4(c).
i. Except as provided in Section 5(c) below, or in the event of termination of the Executive’s employment either by the Company other than for Cause pursuant to Section 4(a) of this Agreement or by the Executive for Good Reason pursuant to Section 4(c) of this Agreement, then in addition to (I) all unvested options, restricted stock, and restricted stock unit and which, by their terms, vest only based on the benefits described in Section 5(apassage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) of this Agreement:
(i) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then current base salary on an annualized basis vest as of the date of termination (notwithstanding anything to the “Severance Payment”)contrary in Section 2(b) of this Agreement) with respect to an additional nine (9) months of vesting; provided, that in and (II) the event Company shall pay the Executive commences any employment substantially similar to Executive’s employment hereunder then-current annual base salary for a period of nine (based upon responsibility, reporting and compensation9) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments months in accordance with the Company’s standard payroll practices over a period of twelve (12) months practice then in effect, beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month period, the “Severance Period”)Commencement Date.
(ii. Except as provided in Section 5(c) Executive shall receive a bonus paymentbelow, in lieu the event of a bonus for the calendar year in which such termination of the Executive’s employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive either by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year other than for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained Cause pursuant to Section 4(a) of this clause (ii) Agreement or by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iiifor Good Reason pursuant to Section 4(c) of this Agreement, if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates terminates, and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall will pay or, at its option, reimburse the Executive, for the full premium cost of that participation until the earlier of for nine (A) twelve (129) months following the Payment Date and (B) date on which the Executive’s employment with the Company terminates or, if earlier, until the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and
(iv) 50% , payable in accordance with regular payroll practices for benefits beginning on the Payment Commencement Date. Notwithstanding the foregoing, if the payment or reimbursement by the Company of the Executive’s then remaining unvested restricted stock which were issued premium costs described in the preceding sentence will subject or expose the Company to taxes or penalties, the Executive and the Company agree to renegotiate the provisions of this Section 5(a)(ii) in good faith and enter into a substitute arrangement pursuant to which the Restricted Stock Agreement Company will not be subjected or exposed to taxes or penalties and which, by their terms, vest only based the Executive will be provided with payments or benefits with an economic value that is no less than the economic value of the premium costs described herein. The Company will also pay the Executive on the passage date of time, shall automatically vest as termination any base salary earned but not paid through the date of the Payment Date.
(c) If a Change of Control (as defined in Section 6 hereof) occurs, termination and within twelve (12) months following such Change of Controlpay for any vacation time accrued but not used to that date. In addition, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall will pay the Executive one hundred percent (100%) of any bonus which has been awarded to the Executive’s then current base salary , but not yet paid on an annualized basis as of the date of terminationtermination of his employment, and such payment shall be made to the Executive payable in a lump sum on the Payment Commencement Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer.
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) Notwithstanding anything to the contrary contained herein, the iii. Any obligation of the Company to make payments to provide the Executive severance payments or other benefits under this Section 5(a) is conditioned on the Executive’s behalf under this Section 5 is expressly conditioned upon signing an effective and reasonable release of claims in the Executive’s continued full performance form provided by the Company (the “Employee Release”) within 60 days following the termination of the Executive’s obligations under this Agreementemployment, including Section 3 hereof, under which release shall not apply to (i) claims for indemnification in the Ancillary Agreements and under any other agreement between the Executive and the Company Executive’s capacity as an officer or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations director of the Company pursuant under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to Sections 5(breceive insurance coverage and payments under any policy maintained by the Company and (iii) through 5(e) rights to receive retirement benefits that are subject to accrued and fully vested at the time of the Executive’s execution termination and non-revocation rights under such plans protected by ERISA. Any severance payments to be made in the form of a severance agreement and release (salary continuation pursuant to the “Release”), drafted by and satisfactory to counsel for terms of this Agreement shall be payable in accordance with the normal payroll practices of the Company, within 45 days following and will begin on the Payment Commencement Date, but shall be retroactive to the date of termination. The severance and benefits described Executive agrees to provide the Company prompt notice of the Executive’s eligibility to participate in Sections 5(b) and 5(c) shall be paid or commence within 15 days following the execution and non-revocation of such Release (the “Payment Date”). Notwithstanding the foregoinghealth plan and, if the 45th day following the date applicable, dental plan of termination occurs in the calendar year following the date of termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar yearany employer. The payment Executive further agrees to repay any overpayment of any severance amounts pursuant to this Agreement shall be subject to health benefit premiums made by the terms and conditions set forth in Section 12Company hereunder.
Appears in 1 contract
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of your employment with the ExecutiveCompany, howsoever occurring, in addition to any amounts previously earned by you under any of the Company’s employment pursuant retirement plans or expressly required to Section 4 of this Agreement:
(i) be paid by the Company under applicable law, the Company shall pay you (i) your Base Salary (at the Executive within 30 days following rate then in effect) for the date final payroll period of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid your employment, through the date of termination your employment terminates at the time prescribe by applicable law for such payment; and any vacation time accrued but not used to that date, and any (ii) reimbursement for business expenses incurred by the Executive you but un-reimbursed on not yet paid to you as of the date of termination, your employment terminates; provided that such you submit all expenses and supporting documentation required substantiation and documentation are submitted within sixty (60) days following of the date of termination your employment terminates, and provided further that such expenses are reimbursed reimburseable under Company policies as set forth then in Section 12(e) effect (all of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law“Final Compensation”).
(b) In the event of your Separation from Service in connection with any termination of the Executive’s your employment by the Company pursuant to Section 4(b) or Section 4(d) hereof, the Company, in addition to Final Compensation, will pay you a sum (the “Severance Pay”) equal to (x) twelve (12) months of this Agreement, or your Base Salary (at the rate then in the event of effect prior to taking in to account any reduction that triggers a termination of the Executive’s your employment by the Executive pursuant to Section 4(c4(d) hereof), payable in accordance, with the Company’s prevailing payroll practices for a period of this Agreement, then in addition to the benefits described in Section 5(atwelve (12) of this Agreement:
(i) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then current base salary on an annualized basis as of months from the date of termination (the “Severance PaymentPeriod”). Any obligation of the Company to you hereunder, other than for Final Compensation, is conditioned however, on your signing and returning to the Company a timely and effective release of claims in the form provided to you by the Company not later than five (5) business days following the date your employment is terminated (the “Employee Release”). You must sign and return (and not revoke) the Employee Release, if at all, by the deadline specified therein, which deadline shall in no event be later than the sixtieth (60th) calendar day following the date your employment is terminated. The first payment in respect of your Severance Pay will be made on the Company’s next regular payroll date following the later of the effective date of the Employee Release or the date it is received by the Company; but that first payment shall be retroactive to the date of termination; provided, that if your Separation from Service occurs in one taxable year and the revocation period expires in the event the Executive commences any employment substantially similar to Executive’s employment hereunder (based upon responsibility, reporting and compensation) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments in accordance with the Company’s standard payroll practices over a period of twelve (12) months beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month periodsecond taxable year, the “payments in respect of your Severance Period”).
(ii) Executive Pay shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (ii) by a fraction, the numerator of which is the number of days commence in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iii) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and
(iv) 50% of the Executive’s then remaining unvested restricted stock which were issued to the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based on the passage of time, shall automatically vest as of the Payment Date.
(c) If a Change of Control (as defined in Section 6 hereof) occurs, and within twelve (12) months following such Change of Control, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall pay the Executive one hundred percent (100%) of the Executive’s then current base salary on an annualized basis as of the date of termination, and such payment shall be made to the Executive in a lump sum on the Payment Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer.
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) second taxable year. Notwithstanding anything to the contrary contained hereinin this Agreement, however, in the obligation event that at the time of the Company to make payments to the Executive or on the Executive’s behalf your Separation from Service you are a “Specified Employee,” any and all amounts payable under this Section 5 is expressly conditioned upon the Executive’s continued full performance in connection with such separation from service that constitute deferred compensation subject to Section 409A of the Executive’s obligations under this AgreementInternal Revenue Code of 1986, including as amended (“Section 3 hereof, under the Ancillary Agreements and under any other agreement between the Executive and the Company or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations of the Company pursuant to Sections 5(b) through 5(e) are subject to the Executive’s execution and non-revocation of a severance agreement and release (the “Release409A”), drafted as determined by the Company in its sole discretion, and satisfactory to counsel that would (but for this sentence) be payable within six (6) months following such separation from service, shall instead be paid on the Company, within 45 days following date that follows the date of terminationsuch separation from service by six (6) months. The severance and benefits described in Sections For purposes of this Section 5(b) and 5(c) ), “Separation from Service” shall be paid or commence within 15 days following determined in a manner consistent with subsection (a)(2)(A)(i) of Section 409A, and the execution and non-revocation term “Specified Employee” shall mean an individual determined by the Company to be a specified employee as defined in subsection (a)(2)(B)(i) of such Release (the “Payment Date”). Notwithstanding the foregoing, if the 45th day following the date of termination occurs in the calendar year following the date of termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar year. The payment of any severance amounts pursuant to this Agreement shall be subject to the terms and conditions set forth in Section 12.409A.
Appears in 1 contract
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of your employment with the ExecutiveCompany, howsoever occurring, in addition to any amounts previously earned by you under any of the Company’s employment pursuant retirement plans or expressly required to Section 4 of this Agreement:
(i) be paid by the Company under applicable law, the Company shall pay you (i) your Base Salary (at the Executive within 30 days following rate then in effect) for the date final payroll period of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid your employment, through the date of termination your employment terminates at the time prescribed by applicable law for such payment; and any vacation time accrued but not used to that date, and any (ii) reimbursement for business expenses incurred by the Executive you but un-reimbursed on not yet paid to you as of the date of termination, your employment terminates; provided that such you submit all expenses and supporting documentation required substantiation and documentation are submitted within sixty (60) days following of the date of termination your employment terminates, and provided further that such expenses are reimbursed reimbursable under Company policies as set forth then in Section 12(e) effect (all of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law“Final Compensation”).
(b) In the event of your Separation from Service in connection with any termination of the Executive’s your employment by the Company pursuant to Section 4(b) or Section 4(d) hereof, the Company, in addition to Final Compensation, will pay you a sum (the “Severance Pay”) equal to (x) six (6) months of this Agreement, or your Base Salary (at the rate then in the event of effect prior to taking in to account any reduction that triggers a termination of the Executive’s your employment by the Executive pursuant to Section 4(c4(d) hereof), payable in accordance with the Company’s prevailing payroll practices for a period of this Agreement, then in addition to the benefits described in Section 5(asix (6) of this Agreement:
(i) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then current base salary on an annualized basis as of months from the date of termination (the “Severance PaymentPeriod”). Any obligation of the Company to you hereunder, other than for Final Compensation, is conditioned, however, on your signing and returning to the Company a timely and effective release of claims in the form provided to you by the Company not later than five (5) business days following the date your employment is terminated (the “Employee Release”). You must sign and return (and not revoke) the Employee Release, if at all, by the deadline specified therein, which deadline shall in no event be later than the sixtieth (60th) calendar day following the date your employment is terminated. The first payment in respect of your Severance Pay will be made on the Company’s next regular payroll date following the later of the effective date of the Employee Release or the date it is received by the Company; but that first payment shall be retroactive to the date of termination; provided, that if your Separation from Service occurs in one taxable year and the revocation period expires in the event the Executive commences any employment substantially similar to Executive’s employment hereunder (based upon responsibility, reporting and compensation) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments in accordance with the Company’s standard payroll practices over a period of twelve (12) months beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month periodsecond taxable year, the “payments in respect of your Severance Period”).
(ii) Executive Pay shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (ii) by a fraction, the numerator of which is the number of days commence in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iii) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and
(iv) 50% of the Executive’s then remaining unvested restricted stock which were issued to the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based on the passage of time, shall automatically vest as of the Payment Date.
(c) If a Change of Control (as defined in Section 6 hereof) occurs, and within twelve (12) months following such Change of Control, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall pay the Executive one hundred percent (100%) of the Executive’s then current base salary on an annualized basis as of the date of termination, and such payment shall be made to the Executive in a lump sum on the Payment Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer.
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) second taxable year. Notwithstanding anything to the contrary contained hereinin this Agreement, however, in the obligation event that at the time of the Company to make payments to the Executive or on the Executive’s behalf your Separation from Service you are a “Specified Employee,” any and all amounts payable under this Section 5 is expressly conditioned upon the Executive’s continued full performance in connection with such separation from service that constitute deferred compensation subject to Section 409A of the Executive’s obligations under this AgreementInternal Revenue Code of 1986, including as amended (“Section 3 hereof, under the Ancillary Agreements and under any other agreement between the Executive and the Company or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations of the Company pursuant to Sections 5(b) through 5(e) are subject to the Executive’s execution and non-revocation of a severance agreement and release (the “Release409A”), drafted as determined by the Company in its sole discretion, and satisfactory to counsel that would (but for this sentence) be payable within six (6) months following such separation from service, shall instead be paid on the Company, within 45 days following date that follows the date of terminationsuch separation from service by six (6) months. The severance and benefits described in Sections For purposes of this Section 5(b) and 5(c) ), “Separation from Service” shall be paid or commence within 15 days following determined in a manner consistent with subsection (a)(2)(A)(i) of Section 409A, and the execution and non-revocation term “Specified Employee” shall mean an individual determined by the Company to be a specified employee as defined in subsection (a)(2)(B)(i) of such Release (the “Payment Date”). Notwithstanding the foregoing, if the 45th day following the date of termination occurs in the calendar year following the date of termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar year. The payment of any severance amounts pursuant to this Agreement shall be subject to the terms and conditions set forth in Section 12.409A.
Appears in 1 contract
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of the Executive’s employment pursuant to Section 4 of this Agreement:
(i) the Company shall pay the Executive within 30 days following the date of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid through the date of termination and any vacation time accrued but not used to that date, and any business expenses incurred by the Executive but un-reimbursed on the date of termination, provided that such expenses and required substantiation and documentation are submitted within sixty (60) days following the date of termination and that such expenses are reimbursed as set forth in Section 12(e) of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law.
(b) In the event of termination of the Executive’s employment by the Company Termination pursuant to Section 4(b) of this Agreementor 4(c).
i. Except as provided in Section 5(c) below, or in the event of termination of the ExecutiveEmployee’s employment either by the Executive Company other than for Cause pursuant to Section 4(a) of this Agreement or by the Employee for Good Reason pursuant to Section 4(c) of this Agreement, then (I) all unvested options, restricted stock and restricted stock units (including the IPO RSUs) in addition each case that were granted prior to the benefits described in Section 5(a2012 IPO, and which by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) of this Agreement:
(i) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then current base salary on an annualized basis vest as of the date of termination (the “Severance Payment”); provided, that in the event the Executive commences any employment substantially similar to Executive’s employment hereunder (based upon responsibility, reporting and compensation) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to an additional six (6) months of vesting; and (II) the Company shall pay the Employee’s then-current annual base salary for a period of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments six (6) months in accordance with the Company’s standard payroll practices over a period of twelve (12) months practice then in effect, beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month period, the “Severance Period”)Commencement Date.
(ii) Executive shall receive a bonus payment, in lieu of a bonus for . If the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (ii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iii) if the Executive Employee is participating in the Company’s group health plan and/or dental plan at the time the ExecutiveEmployee’s employment terminates terminates, and the Executive Employee exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall will pay or, at its option, reimburse the Employee, for the full premium cost of that participation until the earlier of for six (A) twelve (126) months following the Payment Date and (B) date on which the Employee’s employment with the Company terminates, or, if earlier, until the date the Executive Employee becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and
(iv) 50% of the Executive’s then remaining unvested restricted stock which were issued to the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based payable in accordance with regular payroll practices for benefits beginning on the passage Payment Commencement Date. The Company will also pay the Employee on the date of timetermination any base salary earned but not paid through the, shall automatically vest as date of the Payment Date.
(c) If a Change of Control (as defined in Section 6 hereof) occurs, termination and within twelve (12) months following such Change of Controlpay for any vacation time accrued but not used to that date. In addition, the Company or will pay the Employee any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition bonus which has been awarded to the benefits described in Section 5(a) of this AgreementEmployee, and in lieu of any payments to the Executive or but not yet paid on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall pay the Executive one hundred percent (100%) of the Executive’s then current base salary on an annualized basis as of the date of terminationtermination of his employment, and such payment shall be made to the Executive payable in a lump sum on the Payment payment Commencement Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer.
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) Notwithstanding anything to the contrary contained herein, the iii. Any obligation of the Company to make provide the Employee severance payments to the Executive or on the Executive’s behalf other benefits under this Section 5 5(a) is expressly conditioned upon on the ExecutiveEmployee’s continued full performance signing an effective and reasonable release of claims in the Executive’s obligations under this Agreement, including Section 3 hereof, under the Ancillary Agreements and under any other agreement between the Executive and form provided by the Company or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations of the Company pursuant to Sections 5(b) through 5(e) are subject to the Executive’s execution and non-revocation of a severance agreement and release (the “Employee Release”), drafted by and satisfactory to counsel for the Company, ) within 45 60 days following the date termination of terminationthe Employee’s employment, which release shall not apply to (i) rights to receive insurance payments under any policy maintained by the Company and (ii) rights to receive retirement benefits that are accrued and fully vested at the time of the Employee’s termination and rights under such plans protected by ERISA. The severance and benefits described in Sections 5(b) and 5(c) payments shall be paid or commence within 15 days on the first payroll period following the execution and non-revocation date the Employee Release becomes effective, but shall be retroactive to the date of such Release termination (the “Payment Commencement Date”). Notwithstanding the foregoing, if the 45th 60th day following the date of termination occurs in the calendar year following the date calendar year of the termination, then the Payment Commencement Date shall be no earlier than January 1 of such subsequent calendar year. The payment Employee agrees to provide the Company prompt notice of the Employee’s eligibility to participate in the health plan and, if applicable, dental plan of any severance amounts employer. The Employee further agrees to repay any overpayment of health benefit premiums made by the Company hereunder.
(b) Termination other than pursuant to Section 4(b) or 4(c). In the event of any termination of the Employee’s employment, other than a termination by the Company pursuant to Section 4(b) of this Agreement shall be subject or a termination by the Employee for Good Reason pursuant to Section 4(c) of this Agreement, the Company will pay the Employee any base salary earned but not paid through the date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee any bonus which has been awarded to the terms and conditions set forth in Section 12Employee, but not yet paid on the date of termination of the Employee’s employment. The Company shall have no other obligation to the Employee under this Agreement.
Appears in 1 contract
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of the Executive’s employment pursuant to Section 4 of this Agreement:
(i) the Company shall pay the Executive within 30 days following the date of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid through the date of termination and any vacation time accrued but not used to that date, and any business expenses incurred by the Executive but un-reimbursed on the date of termination, provided that such expenses and required substantiation and documentation are submitted within sixty (60) days following the date of termination and that such expenses are reimbursed as set forth in Section 12(e) of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law.
(b) In the event of termination of the Executive’s employment by the Company Termination pursuant to Section 4(b) of this Agreementor 4(c).
i. Except as provided in Section 5(c) below, or in the event of termination of the Executive’s employment either by the Company other than for Cause pursuant to Section 4(b) of this Agreement or by the Executive for Good Reason pursuant to Section 4(c) of this Agreement, then in addition to the benefits described in Section 5(a) of this Agreement:
(i) the Company shall pay the Executive up to one hundred percent (100%) 9/12 of the Executive’s then current base salary on an annualized basis as of the date of termination (the “Severance Payment”); provided, that in the event the Executive commences any employment substantially similar to Executive’s employment hereunder (based upon responsibility, reporting and compensation) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments in accordance with the Company’s standard payroll practices over a period of twelve (12) months beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month period, the “Severance Period”).
(ii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (ii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive Base Salary in a lump sum on the Payment Commencement Date; and.
(iiiii. Except as provided in Section 5(c) below, in the event of termination of the Executive’s employment either by the Company other than for Cause pursuant to Section 4(b) of this Agreement or by the Executive for Good Reason pursuant to Section 4(c) of this Agreement, if the Executive (including any family members) is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor lawterminates, the Company shall will pay for the Executive a lump sum cash amount equal to nine times the full monthly premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (orparticipation, if applicable, dental) plan of a new employer; and
(iv) 50% of the Executive’s then remaining unvested restricted stock which were issued to the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based as determined on the passage of time, shall automatically vest as of the Payment Date.
(c) If a Change of Control (as defined in Section 6 hereof) occurs, and within twelve (12) months following such Change of Control, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall pay the Executive one hundred percent (100%) of the Executive’s then current base salary on an annualized basis as of the date of termination, and such payment shall be made to the Executive , payable in a lump sum on the Payment Commencement Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to . The Company will also pay the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through on the date of such termination and any Base Salary earned but not paid through the, date of termination. In addition, the denominator of Company will pay the Executive any bonus which is 365, and such payment shall be made has been awarded to the Executive Executive, but not yet paid on the date of termination of his employment, payable in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the such time the Executive’s employment terminates and the Executive exercises his right when bonuses are paid to continue participation in those plans under the federal law known as COBRA, or any successor law, executives of the Company shall pay for generally in accordance with the full premium cost timing rules of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employerSection 2(a).
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) Notwithstanding anything to the contrary contained herein, the iii. Any obligation of the Company to make payments to provide the Executive severance payments or other benefits under this Section 5(a) is conditioned on the Executive’s behalf under this Section 5 is expressly conditioned upon signing, returning and not revoking an effective release of claims in the Executive’s continued full performance form attached hereto as Exhibit A (the “Employee Release”) within the deadline specified therein (and in all events within 60 days following the termination of the Executive’s obligations under this Agreementemployment), including Section 3 hereof, under which release shall not apply to (i) claims for indemnification in the Ancillary Agreements and under any other agreement between the Executive and the Company Executive’s capacity as an officer or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations director of the Company pursuant under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to Sections 5(breceive insurance coverage and payments under any policy maintained by the Company and (iii) through 5(e) rights to receive retirement benefits that are subject to accrued and fully vested at the time of the Executive’s execution termination and non-revocation of a severance agreement and release (the “Release”), drafted rights under such plans protected by and satisfactory to counsel for the Company, within 45 days following the date of termination. The severance and benefits described in Sections 5(b) and 5(c) shall be paid or commence within 15 days following the execution and non-revocation of such Release (the “Payment Date”). Notwithstanding the foregoing, if the 45th day following the date of termination occurs in the calendar year following the date of termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar year. The payment of any severance amounts pursuant to this Agreement shall be subject to the terms and conditions set forth in Section 12ERISA.
Appears in 1 contract
Severance Payments and Other Matters Related to Termination. Subject to the provisions hereof:
(a) In the event of termination of the Executive’s employment pursuant to Section 4 of this Agreement:
(i) the Company shall pay the Executive within 30 days following the date of termination of employment any base salary earned in accordance with the provisions of this Agreement but not paid through the date of termination and any vacation time accrued but not used to that date, and any business expenses incurred by the Executive but un-reimbursed on the date of termination, provided that such expenses and required substantiation and documentation are submitted within sixty (60) days following the date of termination and that such expenses are reimbursed as set forth in Section 12(e) of this Agreement; and
(ii) the Company shall pay the Executive within 30 days following the date of termination of employment any bonus which has been earned and specifically awarded to the Executive in accordance with the provisions of this Agreement, but not yet been paid to Executive, as of the date of termination of employment. Notwithstanding the foregoing, the payments referred to in clauses (i) and (ii) of this Section 5(a) shall be paid in accordance with the time periods, if any, required by applicable law.
(b) In the event of termination of the Executive’s employment by the Company Termination pursuant to Section 4(b) of this Agreementor 4(c).
i. Except as provided in Section 5(c) below, or in the event of termination of the Executive’s employment either by the Company other than for Cause pursuant to Section 4(a) of this Agreement or by the Executive for Good Reason pursuant to Section 4(c) of this Agreement, then in addition to (I) all unvested options, restricted stock, and restricted stock unit and which, by their terms, vest only based on the benefits described in Section 5(apassage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) of this Agreement:
(i) the Company shall pay the Executive up to one hundred percent (100%) of Executive’s then current base salary on an annualized basis vest as of the date of termination (notwithstanding anything to the “Severance Payment”)contrary in Section 2(b) of this Agreement) with respect to an additional nine (9) months of vesting; provided, that in and (II) the event Company shall pay the Executive commences any employment substantially similar to Executive’s employment hereunder then-current annual base salary for a period of nine (based upon responsibility, reporting and compensation9) during the Severance Period (as defined below), Executive will notify the Company, and any remaining portion of the Severance Payment will cease to be payable on the date 60 days after commencement of such new employment. The Executive agrees to give prompt notice to the Company of the date of commencement of any new employment during the Severance Period and will respond promptly to any reasonable inquiries concerning any employment of the Executive during the Severance Period. The Severance Payment shall be made to the Executive in installments months in accordance with the Company’s standard payroll practices over a period of twelve (12) months practice then in effect, beginning on the first payroll date after the Payment Date (as defined below) (such twelve (12)-month period, the “Severance Period”)Commencement Date.
(ii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (ii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iii) if . If the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates terminates, and the Executive exercises his her right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall will pay or, at its option, reimburse the Executive, for the full premium cost of that participation until the earlier of for nine (A) twelve (129) months following the Payment Date and (B) date on which the Executive’s employment with the Company terminates or, if earlier, until the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer; and
(iv) 50% of , payable in accordance with regular payroll practices for benefits beginning on the Executive’s then remaining unvested restricted stock which were issued to Payment Commencement Date. The Company will also pay the Executive pursuant to the Restricted Stock Agreement and which, by their terms, vest only based on the passage date of timetermination any base salary earned but not paid through the, shall automatically vest as date of the Payment Date.
(c) If a Change of Control (as defined in Section 6 hereof) occurs, termination and within twelve (12) months following such Change of Controlpay for any vacation time accrued but not used to that date. In addition, the Company or any successor thereto terminates the Executive’s employment pursuant to Section 4(b), or the Executive terminates his employment pursuant to Section 4(c), then, in addition to the benefits described in Section 5(a) of this Agreement, and in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(b) hereof:
(i) all of the Executive’s then remaining unvested stock options and restricted stock which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options or restricted stock based on individual or Company performance) shall automatically vest as of the Payment Date (notwithstanding anything to the contrary in Section 2(c) of this Agreement);
(ii) the Company shall will pay the Executive one hundred percent (100%) of any bonus which has been awarded to the Executive’s then current base salary , but not yet paid on an annualized basis as of the date of terminationtermination of her employment, and such payment shall be made to the Executive payable in a lump sum on the Payment Commencement Date;
(iii) Executive shall receive a bonus payment, in lieu of a bonus for the calendar year in which such termination of employment occurs (except as set forth in Section 5(a)(ii)), in an amount equal to fifty percent (50%) of the average annual bonus paid to the Executive by the Company over the lesser of (A) the three (3) calendar years preceding the calendar year in which such termination of employment occurs or (B) the Term (including, in each case, any year for which no bonus was paid), which bonus payment shall be pro rated by multiplying the amount so obtained pursuant to this clause (iii) by a fraction, the numerator of which is the number of days in the calendar year in which such termination of employment occurs that have elapsed since January 1 through the date of such termination and the denominator of which is 365, and such payment shall be made to the Executive in a lump sum on the Payment Date; and
(iv) if the Executive is participating in the Company’s group health plan and/or dental plan at the time the Executive’s employment terminates and the Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company shall pay for the full premium cost of that participation until the earlier of (A) twelve (12) months following the Payment Date and (B) the date the Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer.
(d) Provisions of this Agreement shall survive any termination of employment if so provided in this Agreement or if necessary to effect surviving provisions of this Agreement, including without limitation the Executive’s obligations under Section 3 of this Agreement and under the Ancillary Agreements.
(e) Notwithstanding anything to the contrary contained herein, the iii. Any obligation of the Company to make payments to provide the Executive severance payments or other benefits under this Section 5(a) is conditioned on the Executive’s behalf under this Section 5 is expressly conditioned upon signing an effective and reasonable release of claims in the Executive’s continued full performance form provided by the Company (the “Employee Release”) within 60 days following the termination of the Executive’s obligations under this Agreementemployment, including Section 3 hereof, under which release shall not apply to (i) claims for indemnification in the Ancillary Agreements and under any other agreement between the Executive and the Company Executive’s capacity as an officer or any of its Affiliates.
(f) Notwithstanding anything to the contrary contained herein, the obligations director of the Company pursuant under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to Sections 5(breceive insurance coverage and payments under any policy maintained by the Company and (iii) through 5(e) rights to receive retirement benefits that are subject to accrued and fully vested at the time of the Executive’s execution termination and non-revocation rights under such plans protected by ERISA. Any severance payments to be made in the form of a severance agreement and release (salary continuation pursuant to the “Release”), drafted by and satisfactory to counsel for terms of this Agreement shall be payable in accordance with the normal payroll practices of the Company, within 45 days and will begin at the Company’s next regular payroll period following the effective date of the Employee Release, but shall be retroactive to the date of termination. The severance and benefits described Executive agrees to provide the Company prompt notice of the Executive’s eligibility to participate in Sections 5(b) and 5(c) shall be paid or commence within 15 days following the execution and non-revocation of such Release (the “Payment Date”). Notwithstanding the foregoinghealth plan and, if the 45th day following the date applicable, dental plan of termination occurs in the calendar year following the date of termination, then the Payment Date shall be no earlier than January 1 of such subsequent calendar yearany employer. The payment Executive further agrees to repay any overpayment of any severance amounts pursuant to this Agreement shall be subject to health benefit premiums made by the terms and conditions set forth in Section 12Company hereunder.
Appears in 1 contract
