Severance Payments upon a Termination without Cause or Resignation with Good Reason. (i) If, during the Term and not in a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of an executed waiver and release of claims in a form approved by the Company (the “Release”) that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) above, the following: (A) an amount in cash equal to twelve (12) months of Executive’s then-existing Annual Base Salary, payable, less applicable withholdings and deductions, in the form of salary continuation in regular installments over the 12-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; and (B) during the period commencing on the Date of Termination and ending on the twelve (12) month anniversary thereof or, if earlier, the date on which Executive becomes eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof). (ii) If, during the Term and during a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of a Release that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) above, the following: (A) an amount in cash equal to twelve (12) months of Executive’s then-existing Annual Base Salary, less applicable withholdings and deductions, payable in the form of salary continuation in regular installments over the twelve (12)-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; provided, however that if the Change in Control constitutes a change in control event within the meaning of Section 409A of the Code, such amount will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below; (B) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occurs, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs; (C) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to 100% of the shares subject to Executive’s then outstanding equity awards (including any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall vest based on actual performance as of the Date of Termination and otherwise be governed by the terms of the applicable award agreement); and (D) during the COBRA Period, subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
Appears in 4 contracts
Samples: Employment Agreement (Acamar Partners Acquisition Corp.), Employment Agreement (Acamar Partners Acquisition Corp.), Employment Agreement (Acamar Partners Acquisition Corp.)
Severance Payments upon a Termination without Cause or Resignation with Good Reason. (i) If, during the Term and not in a Change in Control Period, If Executive’s employment terminates is terminated pursuant to Section 3(a)(ivSections 3.1(a) or 3.1(e) above due to the Company’s termination without Cause or (and not pursuant to Section 3(a)(vSections 3.1(b), 3.1(c), or 3.1(d)) above due to Executive’s resignation with Good Reason(a “Qualifying Termination”), then, subject to Executive’s delivery to the Company of an executed waiver and release of claims in a form approved by the Company (the “Release”) that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, then Executive shall be entitled to receive, in addition to the payments and benefits set forth in Section 4(a) aboveAccrued Amounts (as defined below), the following:
(A1) an amount in cash equal to twelve (12) months of Executive’s then-existing Annual Base SalarySalary (without giving effect to any Base Salary reduction giving rise to Good Reason), payable, less applicable withholdings and deductions, in the form of salary continuation in regular installments over the 12-month twelve (12)-month period following the date of Executive’s Separation from Service Qualifying Termination in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence ;
(2) a pro-rated portion (based on the first regular payroll number of days Executive was employed by the Company during the calendar year in which the date of Executive’s Qualifying Termination occurs) of the Target Bonus for the year in which the Qualifying Termination occurred (the “Pro Rata Bonus”), payable in a lump sum within sixty (60) days following the date the Release becomes effective of Executive’s Qualifying Termination, less applicable withholdings and irrevocable or as otherwise provided in Section 9(n) below; anddeductions;
(B3) during notwithstanding the terms of any equity award agreements to the contrary, (i) any time-based vesting criteria of Executive’s then outstanding equity awards (including all RSUs and Options granted under the LTIP and any other equity incentive plan) which would have become satisfied in the twelve (12) months following the date of Executive’s Qualifying Termination if he had remained employed will be deemed satisfied as of the date of Executive’s Qualifying Termination, and (ii) to the extent any such award is subject to performance or other non-time based vesting criteria, such award will remain outstanding and eligible to vest until the earlier of the last day of the applicable performance period commencing on or the Date of Termination and date ending on the twelve (12) month anniversary of Executive’s Qualifying Termination and be settled (as applicable) in accordance with its terms based on the actual achievement of such performance criteria, without regard for any requirement of continued employment (and, for the avoidance of doubt, any such award which does not become vested based on the actual achievement of applicable performance criteria by earlier of the last day of the applicable performance period or the twelve (12) month anniversary of the date of Executive’s Qualifying Termination will be automatically forfeited without payment therefor as of the date of such twelve (12) month anniversary); and
(4) during the period commencing on the date of Executive’s Qualifying Termination and ending on the twelve (12)-month anniversary thereof or, if earlier, the date on which Executive becomes eligible for comparable replacement coverage under a subsequent employer’s any group health plan of a subsequent employer or otherwise (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide coverage to Executive and Executive’s dependents (at the same or reasonably equivalent levels in effect immediately prior to the date of Executive’s Qualifying Termination), or reimburse Executive for coverage for Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same or reasonably equivalent levels and costs in effect on the Date date of Termination (excludingExecutive’s termination and subject to Executive paying the same cost for such coverage that would have applied had Executive’s employment not terminated, for purposes based on Executive’s elections in effect as of calculating cost, an employeeimmediately prior to the date of Executive’s ability to pay premiums with pre-tax dollars)Qualifying Termination; provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans plans, or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each the remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
(ii) If, during the Term and during a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to on the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of a Release that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) above, the following:
(A) an amount in cash equal to twelve (12) months of Executive’s then-existing Annual Base Salary, less applicable withholdings and deductions, payable in the form of salary continuation in regular installments over the twelve (12)-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; provided, however that if the Change in Control constitutes a change in control event within the meaning of Section 409A of the Code, such amount will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below;
(B) a pro-rated portion (based on the number of days Executive was employed by the Company during the each calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occurs, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant yearmonth, less applicable withholdings and deductionsrequired withholdings. For the avoidance of doubt, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(C) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to 100% of the shares subject to Executive’s then outstanding equity awards (including any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall vest based on actual performance as of the Date of Termination and otherwise be governed by the terms of the applicable award agreement); and
(D) during the COBRA Period, subject to Executive’s valid election to continue healthcare coverage continuation period under Section 4980B of the Code and shall run concurrently with the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its period of continued group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan coverage pursuant to which such benefits this Section 3.2(a)(i)(4). The continued benefits, reimbursement or cash payments provided for in this Section 3.2(a)(i)(4) are provided is not, or ceases prior referred to herein as the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof)“Continued Benefits”.
Appears in 3 contracts
Samples: Executive Employment Agreement (EverCommerce Inc.), Executive Employment Agreement (EverCommerce Inc.), Executive Employment Agreement (EverCommerce Inc.)
Severance Payments upon a Termination without Cause or Resignation with Good Reason. (i) If, during the Term and not in a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of an executed waiver and release of claims in a form approved by the Company (the “Release”) that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) above, the following:
(A) an amount in cash equal to twelve (12) months of Executive’s then-existing Annual Base Salary, payable, less applicable withholdings and deductions, in the form of salary continuation in regular installments over the 12-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below;
(B) if not yet paid, the Sign On Bonus, which will be paid on the first regularly scheduled payroll date following the First Anniversary;
(C) if not yet paid, a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the First-Year Performance Bonus that Executive would have earned had Executive remained employed through the First Anniversary, as determined by the Board in good faith. If and to the extent earned, such pro-rated First-Year Performance Bonus shall be paid within one month following the First Anniversary;
(D) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the normal payment date for such Annual Bonus, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(E) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to that number of shares subject to Executive’s then outstanding equity awards that would have become vested during the twelve (12) month period following the Date of Termination as if Executive had remained employed by the Company through such date (excluding any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall be governed by the terms of the applicable award agreement); and
(BF) during the period commencing on the Date of Termination and ending on the twelve (12) month anniversary thereof or, if earlier, the date on which Executive becomes eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
(ii) If, during the Term and during a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of a Release that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) aboveabove (but without duplication of any payments payable pursuant to Section 4(c)(i)), the following:
(A) an amount in cash equal to twelve (12) months of the sum of (1) Executive’s then-existing Annual Base SalarySalary and (2) Executive’s Target Bonus, less applicable withholdings and deductions, payable in the form of salary continuation in regular installments over the twelve (12)-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; provided, however that (x) if Executive’s employment terminates under the circumstances described herein on or within twelve (12) months after the Change in Control (and provided such Change in Control constitutes a change in control event within the meaning of Section 409A of the Code), such amount will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below, (y) if Executive’s employment terminates under the circumstances described herein within the six (6) months prior to the Change in Control (and such Change in Control constitutes a change in control event within the meaning of Section 409A of the Code), the portion of Executive’s severance that equals the Target Bonus will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the later of the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below and the date of the Change in Control, and (z) if Executive’s employment terminates under the circumstances described herein within the six (6) months prior to the Change in Control (and such Change in Control does not constitute a change in control event within the meaning of Section 409A of the Code), the portion of Executive’s severance that equals the Target Bonus will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the later of the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below and the date that is six (6) months after the Date of Termination;
(B) if not yet paid, the Sign On Bonus, which will be paid on the first regularly scheduled payroll date following the First Anniversary;
(C) if not yet paid, a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the First-Year Performance Bonus that Executive would have earned had Executive remained employed through the First Anniversary, as determined by the Board in good faith. If and to the extent earned, such pro-rated First-Year Performance Bonus shall be paid within one month following the First Anniversary;
(D) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occursoccurred, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(CE) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to 100% of the shares subject to Executive’s then outstanding equity awards (including any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall vest based on actual performance as of the Date of Termination and otherwise be governed by the terms of the applicable award agreement); and
(DF) during the COBRA Period, subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
Appears in 2 contracts
Samples: Employment Agreement (CarLotz, Inc.), Employment Agreement (CarLotz, Inc.)
Severance Payments upon a Termination without Cause or Resignation with Good Reason. (i) If, during If Executive’s employment is terminated pursuant to Sections 3.1(a) or 3.1(e) above or pursuant to the Term Company’s election not to renew this Agreement pursuant to Section 1.2 (and not in pursuant to Sections 3.1(b), 3.1(c), 3.1(d) or Executive’s election not to renew this Agreement pursuant to Section 1.2) (a “Qualifying Termination”) outside of the period commencing on the date of a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to (as defined in the Company’s termination without Cause or pursuant to Section 3(a)(v2019 Incentive Award Plan) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to and ending on the Company first anniversary of an executed waiver and release of claims such Change in a form approved by the Company Control (the “ReleaseChange in Control Protection Period”) that becomes effective and irrevocable in accordance with Section 9(n) below), and Executive’s continued compliance with Section 5 below, then Executive shall have no further rights against the Company hereunder, except for the right to receive, in addition to (x) any unpaid Base Salary with respect to the payments period prior to the effective date of termination, (y) reimbursement of expenses to which Executive is entitled and (z) any other benefits set forth in Section 4(a) aboveto which Executive is legally entitled (collectively, “Accrued Amounts”), the following:
(A1) an amount in cash equal to twelve six (126) months of Executive’s then-existing Annual Base Salary (or, in the case of termination by Executive with Good Reason due to a reduction in Base Salary, Executive’s Base Salary prior to such reduction), payable, less applicable withholdings and deductions, in the form of salary continuation in regular installments over the 12-month six (6)-month period following the date of Executive’s Separation from Service Qualifying Termination in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; and
(B2) during the period commencing on the Date date of Executive’s Qualifying Termination and ending on the twelve six (12) month 6)-month anniversary thereof or, if earlier, the date on which Executive becomes eligible for comparable replacement coverage under a subsequent employer’s any group health plan of a subsequent employer or otherwise (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide coverage to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive for coverage for Executive and Executive’s dependents for coverage dependents, under its group health plan (if any), at the same levels and costs in effect on the Date date of Termination Executive’s termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof) on the Company’s first regular payroll date of each calendar month, less applicable withholdings and deductions. For the avoidance of doubt, the COBRA continuation period under Section 4980B of the Code shall run concurrently with the period of continued group health plan coverage pursuant to this Section 3.2(a)(2). The continued benefits, reimbursement or cash payments provided for in this Section 3.2(a)(2) are referred to herein as the “Continued Benefits”).
(ii) If, In the event of Executive’s Qualifying Termination during the Term and during a Change in Control Protection Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to then Executive shall have no further rights against the Company of a Release that becomes effective and irrevocable in accordance with Section 9(n) belowhereunder, and Executive’s continued compliance with Section 5 below, Executive shall except for the right to receive, in addition to the payments and benefits set forth in Section 4(a) aboveAccrued Amounts, the following:
(A1) an amount in cash equal to the sum of (A) twelve (12) months of Executive’s then-existing Annual Base Salary (or, in the case of termination by Executive with Good Reason due to a material reduction in Base Salary, Executive’s Base Salary prior to such reduction) and (B) Executive’s target Bonus for the calendar year in which the date of Executive’s Qualifying Termination occurs, payable less applicable withholdings and deductions, payable in the form of salary continuation in regular installments over the twelve (12)-month period following the date of Executive’s Separation from Service Qualifying Termination in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; provided, however that if the Change in Control constitutes a change in control event within the meaning of Section 409A of the Code, such amount will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below;
(B) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occurs, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(C) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to 100% of the shares subject to Executive’s then outstanding equity awards (including any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall vest based on actual performance as of the Date of Termination and otherwise be governed by the terms of the applicable award agreement); and
(D2) during the period commencing on the date of Executive’s Qualifying Termination and ending on the twelve (12)-month anniversary thereof or, if earlier, the date on which Executive becomes eligible for coverage under any group health plan of a subsequent employer or otherwise (which period shall be the COBRA PeriodPeriod for purposes of this paragraph), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shallshall provide the Continued Benefits; and
(3) any unvested stock options, in its sole discretionrestricted stock units, either (A) continue performance stock units and such other equity-based awards granted pursuant to provide to Executive and Executive’s dependents, at the Company’s sole expense2016 Stock Plan, 2019 Incentive Award Plan or (B) reimburse Executive and Executive’s dependents for coverage under its group health any other equity plan (if any), at or arrangement maintained by the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, Company that if (1) any plan pursuant to which such benefits are provided is not, or ceases outstanding immediately prior to the expiration date of Executive’s Qualifying Termination shall automatically become fully vested and exercisable (as applicable) as of such date; provided that any such equity awards subject to performance-based vesting shall vest assuming a target level of achievement for each applicable performance objective.
(iii) Any amounts payable pursuant to Section 3.2(a)(i) or Section 3.2(a)(ii), as applicable (collectively, the “Severance Benefits”), shall be in lieu of notice or any other severance benefits to which you might otherwise be entitled from the Company or any of its subsidiaries. Notwithstanding anything to the contrary herein, the Company's provision of the continuation coverage period Severance Benefits shall be contingent upon Executive’s timely execution and non-revocation of a general waiver and release of claims agreement in the Company’s customary form (a “Release Agreement”), subject to bethe terms set forth herein. Executive will have twenty-one (21) days (or in the event that Executive’s termination of employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967, exempt as amended), forty-five (45) days) following Executive’s receipt of the Release Agreement to consider whether or not to accept it. If the Release Agreement is signed and delivered by Executive to the Company, Executive will have seven (7) days from the application date of delivery to revoke Executive’s acceptance of such agreement (the “Revocation Period”). To the extent that any payments of nonqualified deferred compensation (within the meaning of Section 409A 409A) due under Treasury Regulation this Agreement as a result of the Executive’s termination of employment are delayed pursuant to this Section 1.409A-1(a)(53.2(a)(iii), such amounts shall be paid in a lump sum on the first payroll date to occur on or following the 60th day following the date of the Executive’s Qualifying Termination.
(2iv) If Executive does not timely execute the Release Agreement or such Release Agreement is revoked by Executive during the Revocation Period, (i) the Company is otherwise unable shall immediately cease paying or providing the Continued Benefits and Executive shall reimburse the Company for the value of any Continued Benefits already paid or provided, and (ii) any equity awards that vested pursuant to continue Section 3.2(a)(ii)(3) and any shares of Company stock Executive received with respect thereto shall immediately be forfeited, without payment therefor, and Executive shall be required to cover pay to the Company, immediately upon demand therefor, the amount of any proceeds realized by Executive or from the sale of any such shares. Executive acknowledges and agrees that if Executive at any time breaches any of Executive’s dependents under its group health plans obligations pursuant to Articles IV, V or (3) the Company cannot provide the benefit without violating applicable law (includingVI of this Agreement, without limitation, Section 2716 then Executive shall forfeit any further rights to any portion of the Public Health Service Act), then, Severance Benefits payable thereafter.
(v) The provisions of this Section 3.2 shall supersede in their entirety any severance payment provisions in any such caseseverance plan, an amount equal to each remaining policy, program or other arrangement maintained by the Company. The Company subsidy shall thereafter be paid have no further obligation to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof)event of termination of Executive’s employment for any reason at any time, other than those obligations specifically set forth in Section 3.2.
Appears in 1 contract
Samples: Executive Employment Agreement (Sprout Social, Inc.)
Severance Payments upon a Termination without Cause or Resignation with Good Reason. (i) If, during the Term and not in (whether before or after a Change in Control PeriodControl), Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of an executed waiver and release of claims in a form approved by the Company (the “Release”) that becomes effective and irrevocable in accordance with Section 9(n9(m)(vi) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) above, the following:
(Ai) an amount in cash equal to twelve nine (129) months of Executive’s then-existing Annual Base Salary, payable, less applicable withholdings and deductions, in the form of salary continuation in regular installments over the 12-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence a single lump sum cash payment on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n9(m)(vi) below; and
(Bii) during the period commencing on the Date of Termination and ending on the twelve nine (129) month anniversary thereof or, if earlier, the date on which Executive becomes eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
(ii) If, during the Term and during a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of a Release that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) above, the following:
(A) an amount in cash equal to twelve (12) months of Executive’s then-existing Annual Base Salary, less applicable withholdings and deductions, payable in the form of salary continuation in regular installments over the twelve (12)-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; provided, however that if the Change in Control constitutes a change in control event within the meaning of Section 409A of the Code, such amount will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below;
(B) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occurs, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(C) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to 100% of the shares subject to Executive’s then outstanding equity awards (including any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall vest based on actual performance as of the Date of Termination and otherwise be governed by the terms of the applicable award agreement); and
(D) during the COBRA Period, subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
Appears in 1 contract
Samples: Employment Agreement (4D Molecular Therapeutics Inc.)
Severance Payments upon a Termination without Cause or Resignation with Good Reason. (i) If, during If Executive’s employment is terminated pursuant to Sections 3.1(a) or 3.1(e) above or pursuant to the Term Company’s election not to renew this Agreement pursuant to Section 1.2 (and not in pursuant to Sections 3.1(b), 3.1(c), 3.1(d) or Executive’s election not to renew this Agreement pursuant to Section 1.2) (a “Qualifying Termination”) outside of the period commencing on the date of a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to (as defined in the Company’s termination without Cause or pursuant to Section 3(a)(v2019 Incentive Award Plan) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to and ending on the Company first anniversary of an executed waiver and release of claims such Change in a form approved by the Company Control (the “ReleaseChange in Control Protection Period”) that becomes effective and irrevocable in accordance with Section 9(n) below), and Executive’s continued compliance with Section 5 below, then Executive shall have no further rights against the Company hereunder, except for the right to receive, in addition to (x) any unpaid Base Salary with respect to the payments period prior to the effective date of termination, (y) reimbursement of expenses to which Executive is entitled and (z) any other benefits set forth in Section 4(a) aboveto which Executive is legally entitled (collectively, “Accrued Amounts”), the following:
(A1) an amount in cash equal to twelve six (126) months of Executive’s then-existing Annual Base Salary (or, in the case of termination by Executive with Good Reason due to a reduction in Base Salary, Executive’s Base Salary prior to such reduction), payable, less applicable withholdings and deductions, in the form of salary continuation in regular installments over the 12-month six (6)-month period following the date of Executive’s Separation from Service Qualifying Termination in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; and
(B2) during the period commencing on the Date date of Executive’s Qualifying Termination and ending on the twelve six (12) month 6)-month anniversary thereof or, if earlier, the date on which Executive becomes eligible for comparable replacement coverage under a subsequent employer’s any group health plan of a subsequent employer or otherwise (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide coverage to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive for coverage for Executive and Executive’s dependents for coverage dependents, under its group health plan (if any), at the same levels and costs in effect on the Date date of Termination Executive’s termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-pre- tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof) on the Company’s first regular payroll date of each calendar month, less applicable withholdings and deductions. For the avoidance of doubt, the COBRA continuation period under Section 4980B of the Code shall run concurrently with the period of continued group health plan coverage pursuant to this Section 3.2(a)(2). The continued benefits, reimbursement or cash payments provided for in this Section 3.2(a)(2) are referred to herein as the “Continued Benefits”).
(ii) If, In the event of Executive’s Qualifying Termination during the Term and during a Change in Control Protection Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to then Executive shall have no further rights against the Company of a Release that becomes effective and irrevocable in accordance with Section 9(n) belowhereunder, and Executive’s continued compliance with Section 5 below, Executive shall except for the right to receive, in addition to the payments and benefits set forth in Section 4(a) aboveAccrued Amounts, the following:
(A1) an amount in cash equal to the sum of (A) twelve (12) months of Executive’s then-existing Annual Base Salary (or, in the case of termination by Executive with Good Reason due to a material reduction in Base Salary, Executive’s Base Salary prior to such reduction) and (B) Executive’s target Bonus for the calendar year in which the date of Executive’s Qualifying Termination occurs, payable less applicable withholdings and deductions, payable in the form of salary continuation in regular installments over the twelve (12)-month period following the date of Executive’s Separation from Service Qualifying Termination in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; provided, however that if the Change in Control constitutes a change in control event within the meaning of Section 409A of the Code, such amount will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below;
(B) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occurs, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(C) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to 100% of the shares subject to Executive’s then outstanding equity awards (including any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall vest based on actual performance as of the Date of Termination and otherwise be governed by the terms of the applicable award agreement); and
(D2) during the period commencing on the date of Executive’s Qualifying Termination and ending on the twelve (12)-month anniversary thereof or, if earlier, the date on which Executive becomes eligible for coverage under any group health plan of a subsequent employer or otherwise (which period shall be the COBRA PeriodPeriod for purposes of this paragraph), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shallshall provide the Continued Benefits; and
(3) any unvested stock options, in its sole discretionrestricted stock units, either (A) continue performance stock units and such other equity-based awards granted pursuant to provide to Executive and Executive’s dependents, at the Company’s sole expense2016 Stock Plan, 2019 Incentive Award Plan or (B) reimburse Executive and Executive’s dependents for coverage under its group health any other equity plan (if any), at or arrangement maintained by the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, Company that if (1) any plan pursuant to which such benefits are provided is not, or ceases outstanding immediately prior to the expiration date of Executive’s Qualifying Termination shall automatically become fully vested and exercisable (as applicable) as of such date; provided that any such equity awards subject to performance-based vesting shall vest assuming a target level of achievement for each applicable performance objective.
(iii) Any amounts payable pursuant to Section 3.2(a)(i) or Section 3.2(a)(ii), as applicable (collectively, the “Severance Benefits”), shall be in lieu of notice or any other severance benefits to which you might otherwise be entitled from the Company or any of its subsidiaries. Notwithstanding anything to the contrary herein, the Company's provision of the continuation coverage period Severance Benefits shall be contingent upon Executive’s timely execution and non-revocation of a general waiver and release of claims agreement in the Company’s customary form (a “Release Agreement”), subject to bethe terms set forth herein. Executive will have twenty-one (21) days (or in the event that Executive’s termination of employment is “in connection with an exit incentive or other employment termination program” (as such phrase is defined in the Age Discrimination in Employment Act of 1967, exempt as amended), forty-five (45) days) following Executive’s receipt of the Release Agreement to consider whether or not to accept it. If the Release Agreement is signed and delivered by Executive to the Company, Executive will have seven (7) days from the application date of delivery to revoke Executive’s acceptance of such agreement (the “Revocation Period”). To the extent that any payments of nonqualified deferred compensation (within the meaning of Section 409A 409A) due under Treasury Regulation this Agreement as a result of the Executive’s termination of employment are delayed pursuant to this Section 1.409A-1(a)(53.2(a)(iii), such amounts shall be paid in a lump sum on the first payroll date to occur on or following the 60th day following the date of the Executive’s Qualifying Termination.
(2iv) If Executive does not timely execute the Release Agreement or such Release Agreement is revoked by Executive during the Revocation Period, (i) the Company is otherwise unable shall immediately cease paying or providing the Continued Benefits and Executive shall reimburse the Company for the value of any Continued Benefits already paid or provided, and (ii) any equity awards that vested pursuant to continue Section 3.2(a)(ii)(3) and any shares of Company stock Executive received with respect thereto shall immediately be forfeited, without payment therefor, and Executive shall be required to cover pay to the Company, immediately upon demand therefor, the amount of any proceeds realized by Executive or from the sale of any such shares. Executive acknowledges and agrees that if Executive at any time breaches any of Executive’s dependents under its group health plans obligations pursuant to Articles IV, V or (3) the Company cannot provide the benefit without violating applicable law (includingVI of this Agreement, without limitation, Section 2716 then Executive shall forfeit any further rights to any portion of the Public Health Service Act), then, Severance Benefits payable thereafter.
(v) The provisions of this Section 3.2 shall supersede in their entirety any severance payment provisions in any such caseseverance plan, an amount equal to each remaining policy, program or other arrangement maintained by the Company. The Company subsidy shall thereafter be paid have no further obligation to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof)event of termination of Executive’s employment for any reason at any time, other than those obligations specifically set forth in Section 3.2.
Appears in 1 contract
Samples: Executive Employment Agreement (Sprout Social, Inc.)
Severance Payments upon a Termination without Cause or Resignation with Good Reason. (i) If, during the Term and not in a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of an executed waiver and release of claims in a form approved by the Company (the “Release”) that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) above, the following:
(A) an amount in cash equal to twelve (12) months of Executive’s then-existing Annual Base Salary, payable, less applicable withholdings and deductions, in the form of salary continuation in regular installments over the 12-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below;
(B) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occurs, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(C) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to that number of shares subject to Executive’s then outstanding equity awards that would have become vested during the twelve (12) month period following the Date of Termination as if Executive had remained employed by the Company through such date (excluding any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall be governed by the terms of the applicable award agreement); and
(BD) during the period commencing on the Date of Termination and ending on the twelve (12) month anniversary thereof or, if earlier, the date on which Executive becomes eligible for comparable replacement coverage under a subsequent employer’s group health plan (in any case, the “COBRA Period”), subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
(ii) If, during the Term and during a Change in Control Period, Executive’s employment terminates pursuant to Section 3(a)(iv) above due to the Company’s termination without Cause or pursuant to Section 3(a)(v) above due to Executive’s resignation with Good Reason, then, subject to Executive’s delivery to the Company of a Release that becomes effective and irrevocable in accordance with Section 9(n) below, and Executive’s continued compliance with Section 5 below, Executive shall receive, in addition to the payments and benefits set forth in Section 4(a) aboveabove (but without duplication of any payments payable pursuant to Section 4(c)(i)(A)), the following:
(A) an amount in cash equal to twelve (12) months of the sum of (1) Executive’s then-existing Annual Base SalarySalary and (2) Executive’s Target Bonus, less applicable withholdings and deductions, payable in the form of salary continuation in regular installments over the twelve (12)-month period following the date of Executive’s Separation from Service in accordance with the Company’s normal payroll practices, no less frequently than monthly, with the first of such installments to commence on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise provided in Section 9(n) below; provided, however that (x) if Executive’s employment terminates under the circumstances described herein on or within twelve (12) months after the Change in Control (and provided such Change in Control constitutes a change in control event within the meaning of Section 409A of the Code), such amount will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below, (y) if Executive’s employment terminates under the circumstances described herein within the six (6) months prior to the Change in Control (and such Change in Control constitutes a change in control event within the meaning of Section 409A of the Code), the portion of Executive’s severance that equals the Target Bonus will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the later of the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below and the date of the Change in Control, and (z) if Executive’s employment terminates under the circumstances described herein within the six (6) months prior to the Change in Control (and such Change in Control does not constitute a change in control event within the meaning of Section 409A of the Code), the portion of Executive’s severance that equals the Target Bonus will be paid in the form of a single lump sum in accordance with the Company’s normal payroll practices on the first regular payroll date following the later of the date the Release becomes effective and irrevocable or as otherwise set forth in Section 9(n) below and the date that is six (6) months after the Date of Termination;
(B) a pro-rated portion (based on the number of days Executive was employed by the Company during the calendar year in which the Date of Termination occurs) of the Annual Bonus that Executive would have earned had Executive remained employed through the end of the calendar year in which Executive’s Date of Termination occurs, as determined by the Board in good faith. If and to the extent earned, such pro-rated Annual Bonus shall be paid out at the same time annual bonuses are paid generally to other executives of the Company for the relevant year, less applicable withholdings and deductions, but in no event later than March 15th of the year immediately following that in which the Date of Termination occurs;
(C) the vesting and, if applicable, exercisability shall be accelerated (and, if applicable, all restrictions and rights of repurchase on such awards shall lapse) effective as of immediately prior to the Date of Termination with respect to 100% of the shares subject to Executive’s then outstanding equity awards (including any such awards that vest in whole or in part based on the attainment of performance-vesting conditions, which shall vest based on actual performance as of the Date of Termination and otherwise be governed by the terms of the applicable award agreement); and
(D) during the COBRA Period, subject to Executive’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall, in its sole discretion, either (A) continue to provide to Executive and Executive’s dependents, at the Company’s sole expense, or (B) reimburse Executive and Executive’s dependents for coverage under its group health plan (if any), at the same levels and costs in effect on the Date of Termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars); provided, however, that if (1) any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the continuation coverage period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (2) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans or (3) the Company cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), then, in any such case, an amount equal to each remaining Company subsidy shall thereafter be paid to Executive in substantially equal monthly installments over the COBRA Period (or remaining portion thereof).
Appears in 1 contract
Samples: Employment Agreement (Acamar Partners Acquisition Corp.)
